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The Mental Health Court is constituted by a Supreme Court Judge who has been appointed by the Governor in Council.  The judge sits (and makes decisions) alone, but is assisted by two experienced psychiatrists who advise the judge on the psychiatric evidence.

The Mental Health Court has inquisitorial powers that enable issues to be fully investigated and allow the Court to accept material that might otherwise be inadmissible in court proceedings (information not provided under oath).

Hearings are usually open to the public, however, if the person accused with an offence is under 18 years or there are special circumstances, the court can be closed.

Only certain people can make a reference to the Mental Health Court.  These include the person charged or their legal representative, the Attorney-General, the Director of Public Prosecutions, a Court Judge or the Director of Mental Health.  The reference must be accompanied by a report written by an expert who has examined the person.

The reference may relate to a person with a mental illness or a person with an intellectual disability.

• Whether the person was of unsound mind in relation to the offence (i.e. not criminally responsible).
• Whether the person is currently fit for trial and, if the person is unfit for trial, whether the unfitness is of a permanent nature.
  

The Mental Health Court usually makes decisions in relation to indictable offences; however, simple offences can also be determined if the person is charged with both.

The court cannot make a decision about unsoundness of mind if the facts relating to the offence are in dispute.

There are four potential outcomes:

1. If the person is found of unsound mind and permanently unfit for trial:

• the court may place the person on a forensic order
• proceedings for the offence are discontinued
• treatment and safety is monitored by an authorised mental health service and the Mental Health Review Tribunal

2. If the person is found of unsound mind but not permanently unfit:

• the court will place the person on a forensic order
• proceedings are suspended
• regular reviews of the person's fitness for trial are conducted by the Mental Health Review Tribunal
• if the person becomes fit, the legal proceedings are continued

3. If the person is found to be not of sound mind and fit for trial:

• proceedings for the offence continue through the criminal justice system
• the person may continue to receive treatment under an existing involuntary treatment order or a forensic order

4. If the person is found fit for trial but there is a dispute of facts:

• proceedings for the offence continue through the criminal justice system

• are made by the Mental Health Court, or after a jury finding of unsoundness of mind or unfitness for trial.
• are made in the context of the seriousness of the offence, the person's treatment needs and the protection of the community.

A forensic order authorises the person's involuntary treatment and detention in an authorised mental health service.



For more information on the Mental Health Court go to www.courts.qld.gov.au/1346.htm

For a diagrammatic representation of Mental Health Court processes go to the flow chart Mental Health Court decisions (PDF) on this website.

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