7.3 - Process for ongoing review of fitness for trial

Under section 271 of the Mental Health Act 2000 (Qld) the Mental Health Court may decide the person is unfit for trial but also that the unfitness is of a permanent nature.

However, where a defendant has been determined by the Mental Health Court to be unfit for trial on a temporary basis, the Mental Health Review Tribunal will review the person's fitness every three months for the first 12 months, and thereafter every six months, to decide if the person subsequently becomes fit for trial: see sections 208(a) and 209.

If at any time the Tribunal determines that the person is fit for trial, the person then ceases to be a forensic patient and criminal proceedings will recommence against them. Alternatively, under section 212, if after the fourth scheduled review, and on all subsequent reviews, the Tribunal determines that the person remains unfit for trial, and that the person is unlikely to become fit for trial within a reasonable time, the Tribunal must report that decision to the Attorney General.

Although, the Attorney General is empowered to order that proceedings be discontinued at any time under section 214 and 217, section 215 provides that proceedings are automatically discontinued if the patient remains unfit for trial for three years.

For offences carrying a maximum penalty of life imprisonment, the proceedings are discontinued after seven years. In these cases, the person remains a forensic patient until the proceedings against them are discontinued and the Tribunal revokes the Forensic Order.