The need for an amendment to the current mental health laws has been evidenced with an ever-increasing correlation of mental health issues and violent offending, highlighted in a recent four corners episode. Whilst more resources are needed to facilitate a  community-based system of mental health care, the law recognises that mental health conditions may sometimes impinge on a person’s ability to reason or properly understand the nature of their actions. As such, a person may escape criminal liability for an offence if a mental condition has played a role in the commission of the offence, reflected in recent changes by the NSW Parliament to the Mental Health Laws.


Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 

Following the passing of the Mental Health and Cognitive Impairment Forensic Provisions Bill 2020  (NSW), key aspects of NSW forensic mental health laws are set to change under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

The changes will clarify key principles, namely:

  • Fitness for trial;
  • The insanity defence; and
  • Diversion.

Overall, the changes have the effect of codifying many aspects of the common law in relation to forensic mental health.


Get in touch with a criminal lawyer today.

Fitness for Trial

The classic definition of when a person is fit for trial is contained in case law and the formulate of the court in R v Presser [1958] VR 45.

The changes to NSW forensic mental health law, now create an explicit statutory test which states a person will be unfit to be tried if, because the person has a mental health impairment or a cognitive impairment, they cannot:

  • Understand the offence
  • Plead to the charge
  • Understand generally the nature of the proceedings as an inquiry as to whether the person committed the offence
  • Make a defence or answer to the charge.

The Insanity Defence and Mental Health Laws

At present, Section 38 of the Mental Health (Forensic Provisions) Act 1990 states that where evidence is given in court which shows that, at the time of the offence, a person was suffering from a mental illness and was not responsible for their actions, the jury must find them ‘not guilty by reason of mental illness’.

Traditionally, the defence has been formulated, based on the case M’Naghten, as:

A defect of reason, from a disease of the mind, as not to know the nature and quality of the act [the defendant] was doing; or, if he did know it, that he did not know he was doing what was wrong.

The new reforms modify this wording of this provision to a ‘defence of mental health impairment or cognitive impairment.’

Under the changes, a new statutory test has been established. If a person who had a mental health impairment or a cognitive impairment, or both, at the time of carrying out an act offence will not be criminally responsible if:

The impairment had the effect that the person did not know the nature and quality of the act; or that it was wrong because the person could not reason with a moderate degree of sense and composure about whether the act was wrong.

A special verdict by a jury of ‘act proven but not criminally responsible’ due to mental health impairment or cognitive impairment is now required.

The reforms also allow a special verdict to be entered by a court at any time in the proceedings if the defendant and the prosecutor agree.


At present, Section 32 of the Mental Health (Forensic Provisions) Act 1990 is commonly used to divert those who suffer from mental conditions away from criminal penalisation and towards treatment in the Local Court.

An order under section 32 could be granted in situations where someone was suffering from a mental condition at the time of the alleged offence or can be shown to be suffering from an ongoing mental condition during the court proceedings.

The reforms have altered the section 32 order process and replaced them with a new process under Division 2 of the Act.

Key Takeaways

Other Changes to the Mental Health Laws

Other reforms to the Mental Health Laws include:

If you or someone you know needs advice or representation for an alleged criminal offence, contact the team at Hamilton Janke Lawyer 24 hours a day, seven days a week by calling 4038 1666.

Written By
Picture of James Janke
James Janke

James Janke is founding partner at Hamilton Janke Lawyers, and has more then decade of experience as a Criminal Defence Lawyer. Admitted to both the Supreme Court of New South Wales and High Court of Australia