The new Mental Health Act 2016 commenced on the 5thMarch 2017.  It will replace the Mental Health Act 2000[i].

The new Act rectifies a perceived deficiency in the previous mental health legal framework in Queensland by now expressly enabling Magistrates to discharge persons who appear to have been of unsound mind at the time of an alleged offence or unfit for trial.

Under the new Act, if a person is charged with a civil offence (eg. traffic offences, disorderly behaviour and minor criminal offences) and a Magistrates Court is satisfied that they were of unsound mind at the time of the offence or unfit to stand trial, the Court may dismiss the charge or, if the person is temporarily unfit, adjourn the hearing.  To assist the Court in determining the person’s soundness of mind or fitness to stand trial, a mental health assessment may be conducted by the Court Liaison Service.

If the Court dismisses the charge or adjourns the hearing, or otherwise believes it would benefit the person, the Court may make an examination order.  To make an examination order the Court must be satisfied the person has a mental illness or is unable to decide whether the person has a mental illness or another mental condition.

An examination order allows the person to be temporarily detained for examination in a public sector health service facility or an authorised mental health service.  A mental health examination is used to decide whether to:

  • Make a treatment authority for the person – providing lawful authority to treat them if they lack the capacity to consent to treatment;
  • Make a recommendation for the person’s treatment and care; or
  • Change the nature and extent of treatment and care provided to the person under an existing authority or order.

A mental health examination is intended to inform clinical decision-making about the person’s mental health care and treatment, not to inform the Court about criminal responsibility or fitness to stand trial.

However, under Section 180 of the new Act the examination report, including details of the examination, would be admissible against the person in the criminal proceedings for which the examination order was made and any future proceeding to which it is relevant.

Following the Act receiving assent, Queensland Health has undertaken implementation work including the involvement of a steering committee which raised concerns about the current admissibility in evidence of statements made by a person during a mental health examination in criminal proceedings against a person’s interests.  Similar concerns were raised regarding the admissibility of statements made during mental health assessments.

The steering committee considered that allowing statements to be admitted in evidence may deter individuals from being open and honest about the circumstances of the alleged offence, comprising the mental health assessment or mental health examination process, to the person’s detriment.  The steering committee has recommended amendments to the new Act and that has been supported by the Chief Magistrate.

There is currently a Mental Health Amendment Bill 2016 before the Queensland Parliament which brings into effect the proposed above changes of note see the Mental Health Amendment Bill 2016 Parliamentary Committee Report tabled February 2017.


By Terry O’Gorman

6 March 2017

[i] The observations in this note are taken from the Report of the Queensland Parliamentary Committee which reported on the amendments last week.