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Myth 1. People with a mental illness can easily get a mental health defence.
Myth 2. People with a mental illness get soft options.
Myth 3. People with mental illness don't go to trial.
Myth 4. People with a mental illness disappear into the system.
Myth 5. People with a mental illness are all dangerous.
Just because someone has a mental illness it does not necessarily mean that they will get a mental health defence. In order to get a mental health defence, the person must be found by the Mental Health Court to be 'not criminally responsible' for the offence - to be of 'unsound mind' or be unfit for trial.
The person will be assessed by at least one psychiatrist prior to the court appearance who will provide an opinion based on the clinical assessment of the person, information available on the person's mental state and information relating to the offence. The Mental Health Court must be satisfied that the person meets the criteria for unsound mind or is unfit for trial.
If the Court finds the person was of unsound mind or the person is permanently unfit for trial, it may make a forensic order. In making this decision, the Court considers:
If a forensic order is made, the person is detained to an authorised mental health service as a forensic patient. The Mental Health Court may approve that the person has limited community treatment. The forensic order is regularly reviewed by the Mental Health Review Tribunal. The Tribunal may approve limited community treatment for a forensic patient and may revoke the forensic order. Strict criteria apply to these decisions and the Tribunal must take account of the person's treatment needs and community safety.
Ongoing monitoring and assessment occurs through the mental health service to ensure that the person continues to receive treatment for their mental illness.
If a person with a mental illness is afforded a mental health defence by the Mental Health Court, they may be placed on a forensic order.
While people who are on forensic orders may not go to prison, they may have many restrictions placed on them.
If someone under a forensic order does not comply with the conditions of their limited community treatment, for example, they don't attend regular appointments or take their medication, the Mental Health Act 2000 permits the mental health service to return the person to a mental health facility to review their mental state. Sometimes police will be called to assist in returning the person to a mental health facility.
The conditions and amount of leave stated in the person's limited community treatment plan can be changed by the treating team at any stage but cannot exceed the leave approved by the Mental Health Court or Mental Health Review Tribunal.
The Australian Oxford Paperback Dictionary defines a trial as 'an examination in a law court by a judge to decide on the guilt or innocence of an accused person'.
Queensland is the only state in Australia to have a dedicated court - the Mental Health Court - to deal with mentally ill offenders.
While there is no jury in the Mental Health Court, the person's case is heard by a Supreme Court Judge who will examine the evidence of the case and the relevant psychiatric reports. The judge is assisted by two experienced psychiatrists who advise the judge on clinical matters.
Rather than an adversarial system in which the side who puts forward the stronger case wins, the Mental Health Court is an inquisitorial body. This means that the court seeks to establish the 'truth' with the assistance of clinical experts.
In order for legal proceedings to continue, a person with a mental illness must be 'fit for trial'. The Mental Health Act 2000 defines 'fit for trial' as meaning that a person is fit to plead at the person's trial and to instruct counsel and endure the person's trial, with serious adverse consequences to the person's mental condition unlikely. A person may be found to be permanently or not permanently unfit for trial. If they are not permanently unfit for trial, the Mental Health Review Tribunal will conduct regular reviews of their fitness. If the person becomes fit for trial, proceedings will continue in the criminal justice system through the normal process.
If a person is diverted to the forensic mental health system, they are subject to regular monitoring and reviews. This includes regular review by the treating clinical team and the Mental Health Review Tribunal.
The Mental Health Review Tribunal can only revoke a forensic order if it is satisfied that the person does not represent an unacceptable risk to their own or other's safety. This is determined following consideration of the person's history of mental illness, their current mental state and the nature of the offence.
If the Mental Health Review Tribunal finds the person to be fit for trial, the person is returned to court in the criminal justice system within seven days. Upon return to court, the forensic order ceases for that specific offence.
The vast majority of people with mental illness are not dangerous to others. The fact is that people with a mental illness will mostly have the same triggers to violence as those who do not have a mental illness, for example, poverty, alcohol abuse, drug abuse and unemployment, among other things, are thought to increase an individual's risk of violence.
For more information on mental illness and violence visit the Mindframe website
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