Mentally impaired defendants

Contributed by Paula Parentich and current to 1 September 2005

These patients are those admitted to hospital in accordance with the Criminal Law (Mentally Impaired Defendants) Act 1996 (WA) (“the CLMID Act”). They comprise people facing criminal proceedings.

HOSPITAL ORDERS

A judicial officer who reasonably suspects that a defendant who has been refused bail meets the involuntary order criteria set out in the Mental Health Act can make an order that the person be detained in an authorised hospital on a “hospital order” made under the CLMID Act.

After assessment by a psychiatrist at the authorised hospital, if the person meets the involuntary order criteria, he or she may be made an involuntary patient under the Mental Health Act. If the person does not meet the involuntary order criteria, they must be held in custody until a date set by the judicial officer for further hearing. This must not be more than 7 days from the original hospital order sending the person to the hospital.

If the defendant is made an involuntary patient, the judicial officer may issue a remand warrant ordering the person to remain at the authorised hospital for a given period of time. The provisions of the Mental Health Act apply save that, if the person is discharged from involuntary status prior to the expiry of the remand warrant, the person must be held in custody until its expiry. This need not be at the authorised hospital, but the person will not be able to leave the hospital until other arrangements for detention are made.

PERSONS UNFIT TO STAND TRIAL

(See also the section headed ‘Criminal Justice’ in DISABILITY AND THE LAW )

A defendant may be found to be mentally unfit to stand trial if he or she is unable to:

• understand the nature of the charge;
• understand the requirement to plead guilty or not guilty or to understand what the effects of the plea are;
• understand the purpose of a trial;
• understand or to exercise the right to challenge jurors;
• follow what is happening at the trial;
• understand the effect of evidence presented by the prosecution; or
• properly defend himself or herself.

If this is the case, the person may be found by a court to be mentally impaired. Mental Impairment is defined to include any intellectual disability, mental illness, brain damage or senility. It has, therefore, considerably wider application than the definition in the Mental Health Act.

Summary offences

A defendant charged with a summary offence may be determined unfit to stand trial by the judicial officer hearing the charges. The prosecution and the defendant both have the right to appeal the judicial officer’s decision.

Where the defendant is found unfit to stand trial, the trial may be adjourned for up to 6 months. If the person remains unfit to stand trial, he or she may be discharged without any finding of guilt, or may be made subject to a custody order. A custody order can only be made where a magistrate is satisfied that the statutory penalty for the alleged offence includes imprisonment and it is in the interest of the public to make the order, taking into account the strength of the evidence, the nature of the alleged offence, the defendant’s character, age, antecedents and health.

Indictable offences

In the Magistrates Courts, a defendant found to be unfit to stand trial is deemed to have elected not to have the matter heard summarily, and to have pleaded not guilty.

If the defendant is subsequently found not guilty due to unsoundness of mind, the judicial officer may:

• make an order releasing the defendant unconditionally, having regard to the public interest and the nature and circumstances of the offence and the defendant’s character, antecedents, age and mental health; or
• make a Conditional Release Order, a Community Based Order, or an Intensive Supervision Order under the Sentencing Act 1995 (WA); or
• make a custody order.

In superior courts, the procedure is similar; however, if the judge finds the defendant unfit for trial after adjournment and treatment for a period of up to 6 months, the person may be released or made subject to a custody order. If the person is released and is later believed to be fit to stand trial, the indictment may be renewed and the trial will take place.

If the defendant is found not guilty of an offence not listed in Schedule 1 of the CLMID Act due to unsoundness of mind, the judge has the same options as a magistrate. Schedule 1 offences are always subject to a custody order.

ACQUITTAL DUE TO UNSOUNDNESS OF MIND

If a person is found not guilty of an offence because of section 653 or 693 of The Criminal Code and the offence falls within those listed in Schedule 1 of the CLMID Act (specified serious offences), a custody order must be made.

CUSTODY ORDERS

A mentally impaired defendant who is detained in an authorised hospital, a declared place, a detention centre or a prison under a custody order is held there until released by order of the Governor.

The mentally impaired defendant may not be held in an authorised hospital unless:

• he or she has a mental illness which is capable of satisfactory treatment at the authorised hospital and treatment is required to:
– protect the health or safety of the defendant or another person; or
– prevent the defendant seriously damaging property; and
– the defendant has refused or is unable to consent to treatment.

GOVERNOR

A mentally impaired defendant may be discharged from a custody order or granted leave by the Governor on recommendation by the Mentally Impaired Defendants Review Board. Leave may be subject to such conditions as the Board deems necessary and may not exceed 14 days at any one time. A defendant who is absent without leave may be apprehended by the facility responsible for the person or by the police. It is an offence to be absent without leave.

MENTALLY IMPAIRED DEFENDANTS REVIEW BOARD

The Mentally Impaired Defendants Review Board considers leave and release of defendants detained under custody orders and makes recommendations to the Governor. The Board has the power to issue warrants of arrest. The Board comprises 6 members as follows:

• a judge from the Parole Board;
• a Parole Board member;
• a psychiatrist;
• a psychologist; and
• a judicial member (who is the Chair).

DISCHARGE OF DEFENDANTS NOT ON CUSTODY ORDERS

A person who is a prisoner admitted to hospital in the course of his or her detention may be released from the hospital at the end of the period of detention; however, a psychiatrist must first examine the person to determine whether or not they satisfy the involuntary order criteria to be admitted as an involuntary patient under the Mental Health Act. If this is the case, the person could be made an involuntary patient, and whilst no longer a prisoner, would still have to remain at the authorised hospital until discharged or released following a review by the Mental Health Review Board.