Representing Mentally Ill and Intellectually Disabled Clients in QLD

5.1 - Criminal Proceedings Suspended

Where Chapter 7 Part 2 of the Mental Health Act 2000 (Qld) applies, lawyers should inform the Court that those provisions apply, and, that under section 243, criminal proceedings against the person should be suspended until:

  • The Director of Public Prosecutions makes a decision that the proceedings are to continue or be discontinued; or
  • The Mental Health Court makes a decision; or
  • The Director of Mental Health gives a notice to the Chief Executive for Justice that Chapter 7 Part 2 no longer applies to the person.

Be aware that if the person ceases to receive involuntary treatment (that is, the Mental Health Review Tribunal or the treating mental health service has revoked the ITO or FO), criminal proceedings are automatically re-commenced against the person. In these circumstances, lawyers should consider the merits of referring the matter (where the person is charged with an indictable offence) to the Mental Health Court under Chapter 7 Part 4.

Practitioners must be aware that section 244 allows a Court (other than the Mental Health Court) to grant Bail for their client under the Bail Act 1980 (Qld). Section 244 also does not prevent the Court from remanding the patient in custody or adjourning the matter. Section 244 also allows a complainant or the Director of Public Prosecutions to discontinue the prosecution.