Representing Mentally Ill and Intellectually Disabled Clients in QLD

6.0 - Client is Charged with an Indictable Offence and is not on an ITO or FO

Initially, if a practitioner has reasonable concerns about a client's mental state and/or fitness for trial, and the client is not currently subject to an Involuntary Treatment Order or a Forensic Order, lawyers should consider informing the client that they may, depending upon the circumstances, have a defence of unsoundness of mind, or, that the Court may find that they are unfit for trial.

If a person who appears to suffer from a mental illness and/or a significant intellectual disability is charged with an indictable offence, and medical opinion deems them to be ‘unfit for trial', the matter can be dealt with by the Mental Health Court, or, by virtue of section 613 of the Criminal Code Act 1899 (Qld) (Want of understanding by accused person).

Chapter 7 Part 4 of the Mental Health Act 2000 (Qld) regulates references to the Mental Health Court where a defendant is not the subject of an Involuntary Treatment Order or a Forensic Order.

A reference may only be made where there is reasonable cause to believe the person alleged to have committed an indictable offence is currently mentally ill, or was mentally ill when the alleged offence was committed, or, where the person has an intellectual disability of such significance that issues of unsoundness of mind, diminished responsibility or fitness for trial warrant consideration.

The following persons may refer a matter to the Court:

  • The Director of Mental Health, if the person is receiving treatment for a mental illness;
  • The Attorney-General;
  • The person or their legal representative;
  • The Director of Public Prosecutions; or
  • A District or Supreme Court.

On receiving the reference, the original Court must suspend proceedings against the person under section 259, until the Mental Health Court makes a decision on the reference.

Under section 258 the reference must be made by filing a notice in the approved form at the Mental Health Court Registry, and must be accompanied by a copy of any expert's report on the expert's examination of the person. Section 260 authorises the original Court to grant bail; remand the defendant in custody; and to adjourn the matter. Section 260 also allows a complainant or the Director of Public Prosecutions to discontinue the prosecution.

Moreover, the District or Supreme Court may refer a matter to the Mental Health Court under section 62 of the Act.