On 28 March 2021, the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (MHCIFPA) replaced the Mental Health (Forensic Provisions) Act 1990.
We will explain:
1.Changes under the new Act
4.Terms in the new Forensic Provisions Act
- Changes under the new act
Modern language – changes in terms such as ‘suffering’ and ‘disease of the mind’ to describe mental illness.
Defines ‘mental health impairment’ and ‘cognitive impairment’, giving courts standard test to decide whether a person comes under the new Act.
Creating a test to decide whether a person is fit to stand trial in the District or Supreme Court.
Changing the special verdict from ‘not guilty by reason of mental illness’ to ‘act proven but not criminally responsible because of mental health impairment or cognitive impairment’.
Listing factors for Magistrates to consider when deciding whether to divert defendants charged with less serious crimes in the Local Court. The list will include whether the defendant is likely to endanger the safety of any victim or the community.
Altering processes in the forensic mental health system so that it is clearer for all participants .
- Carer’s Rights
The new Forensic Provisions Act only mentions the word ‘carer’ 3 times.
Section 77  allows a carer (among others) to ask after the first review to have the Mental Health Review Tribunal (MHRT) to extend review periods from a maximum of 6 months to a maximum of 12 months. Section 118  states that the authorised medical officer must take all reasonably practicable steps to consult with any designated carer or the principal care provider around planning leave, release, subsequent treatment or anything else in relation to the person and the provision of relevant services.
The Tribunal must talk directly with each Minister administering the Act and other agencies, but not with carers or victims of crimes committed by patients.
There are no requirements under the Act for the Tribunal to tell carers or victims before hearings, reviews, or about the outcomes. Communication with carers or victims is not the Tribunal’s job and has conditions. Tribunal Practice Directions are controlled by the laws.
- Victim’s Rights
Under the new Forensic Provisions Act (ss 145 and 146), victims may make requests to the Tribunal and ask that some or none of their submission is told to the forensic patient. The Tribunal must agree unless the request is considered not to be in the interest of justice, such as fairness to the forensic patient.
The same rights are not given to carers in the Act unless the carer happens to be the victim.
The authorised medical officer for carers and the Commissioner of Victims’ Rights (when a victim is on the Victims Register) are the ones that must advise of hearings .
- Terms in the Forensic Provisions Act
Diversion Orders – allow sentencing for those found to have a mental health or cognitive impairment to be diverted to care of a ‘responsible person’, or service for treatment or other orders.
Key changes to diversion include a list of some of the reasons for magistrates to think of when deciding whether to allow diversion and lets a magistrate call a defendant back to face original charges if they misbehave within 12 months rather than 6 months.
NSW Attorney General Mark Speakman (MLC) said diversion to treatment leads to much lower rates of reoffending. How it plays out for carers and consumers in real life needs more investigating.
Limiting term – under the new Act this  is an estimate of what sentence would have been given by the court in an ordinary criminal hearing. The court must refer the defendant to the Tribunal if it nominates a limiting term and notify the Tribunal . The court may order that the defendant be detained in a mental health facility, correctional centre, detention centre or other place until reviewed by the Tribunal.
Extension Order – is an order to keep the person in hospital or prison after the end of the limiting term if the Supreme Court thinks the patient is an unacceptable risk of serious harm to others if let out and there is no other way of stopping this.
Interim Extension Order – is an order to keep a person in hospital or prison by the Supreme Court if the limiting term or extension order will run out before the end of the trial or hearing, and that the charges would, if proved, justify this kind of order, but they cannot go for more than 3 months .
If you would like more information, please visit Justice NSW:
 See https://www.justice.nsw.gov.au/Pages/Reforms/forensic-mental-health.aspx#Keychanges
 See for examples ss 158, i38, 106(2)
 See ss 156, 157 The Commissioner of Victim’s Rights must give notice to a victim … whose name is recorded in the Register including when the patient is due for, applies for, or appeals Tribunal review and if any changes are considered in relation to release, granting leave, unlawful absence or the patient’s forensic status. The victim may make a submission and must be notified of all procedures around that.
29th May, 2023