Mental Health Flashcards
What is the definition of a mentally ill person under section 14 of the Mental Health Act?
- Person is suffering from a mental illness and,
- Owing to that illness there are reasonable grounds for believing that care, treatment or control of the person is necessary for;
- THEIR OWN PROTECTION
- THE PROTECTION OF OTHERS
- From serious harm
What is the definition of a mentally disordered person under Section 15 of the Mental Health Act 2007?
Person, whether or not the person is suffering from a mental illness, is a mentally disordered person if the persons behaviour for the time being requires temporary care treatment or control for their own protection and that of others from serious harm.
The Insanity Defence
- This defence can be raised in respect to any crime
- Can be used in summary proceedings and indictable offences in the summary justification, but not in committal proceedings (s. 31)
- A successful use of this defence establishes a lack of mens rea
- Insanity relates to the defendant’s state of mind at the time of the commission of the offence
- The onus is on the defence to prove on the balance of probabilities
Section 32 MH(FP)A applications:
- Section 32 applies to cognitively impaired or persons suffering from a mental illness or mental condition
- Section 32 does not apply to mentally ill/disordered persons
- The consideration for a Section 32 application is the defendants states AT THE TIME OF THE APPLICATION OR THE TIME OF THE OFFENCE
Section 33 MH(FP)A applications:
- Section 33 applies to mentally ill/disordered persons
- Section 33 applies to persons who are considered mentally ill AT THE TIME OF THE COURT MATTER
M’Naghten’s Case (1843)
“Not to know the nature and quality of the act he was doing or, if he did know it, that he did not know what he was doing was wrong”
First branch – As a result of disease of the mind the accused was unable to appreciate the nature and quality of the act.
Second branch – Did not know the act was wrong. For example, morally wrong and not wrong at law - wrong as to the everyday standards of reasonable person.
Section 32(1) MH(FP)A
At the commencement or at any time during the course of the hearing of proceedings, it appears to the Magistrate, the defendant is or was at the time of the offence: a)
(i) cognitively impaired
(ii) suffering from a mental illness
(iii) suffering from a mental condition for which treatment is available in a mental health facility
BUT IS NOT A MENTALLY ILL PERSON AND….
Section 32(1) (b) MH(FP)A
That, on the outline of the facts alleged, it would be more appropriate to deal with the defendant with the provisions of this part otherwise in accordance with law.
Section 32(2) MH(FP)A, a Magistrate may do any of the following:
a) Adjourn the proceedings
b) Grant bail
c) Make any other order the Magistrate considered appropriate.
Section 32(3) MH(FP)A, The Magistrate may make an order dismissing the charge and discharge the defendant:
a) Into care of responsible person, conditionally or unconditionally.
b) On condition that the defendant attend a person/place specified for assessment of defendants mental conditions
c) Unconditionally.
Section 32 & the Prosecutor. What the prosecutor must consider:
- Firstly, as a question of fact, does the defendant fall into the definition of s.32
- Secondly, a discretion to deal with it under MHPFA, must have regard to public interest vs treatment mandated by the court
- Thirdly, if determined to deal with defendant under s. 32 which action in ss. 2 or ss. 3 are needed
- S.32 (3) Failing to name a person or place for treatment renders the enforcement order nugatory. Must be specified with precision DPP v Saunders [2017] NSWSC 760 at 47
Perry V Forbes & Storey (1993). What does the Magistrate need to know?
- Circumstances surrounding the commission of the offence and the mental condition of the defendant.
- A clear and effective treatment plan.
- Likely to ensure that there would not be a repetition of incident in question or some other unfavourable incident.
- Tender facts, record and any other relevant information on application.
- No plea needs to be entered.
What are the main points regarding a s. 32 within DPP v Albon (2000)?
- To determine if it is appropriate to deal with the matter under s. 32, Magistrate must have regard to the facts.
- Sufficient treatment plan that addresses re-offending.
Outline the main points within DPP v Sami El Mawas in regards to a s. 32?
- Determination is discretionary.
- Magistrate looks at seriousness of facts.
- Entitled to hold no relevant relationship between the defendants mental condition and the offences.
What is considered in regards to the persons mental state in s. 33 MH(FP)A applications?
- Section 33 applications are for more serious mental conditions than those considered in s.32.
- s. 33 refers to mentally ill persons (at the time of the application).
- s. 33 applications provide for the defendant to be taken by a person of a kind prescribed by the Regulations (Cl13) to a hospital where they will be detained for assessment.
What happens when the person is not found to be mentally ill under s. 33?
If the person is not found to be mentally ill on assessment s/he is returned to court to be dealt with if order under s.33(1)(b), but if order is under s.33(1)(a), the defendant does not have to be returned. (SGT CAN MAKE NEW BAIL DETERMINATION s.43(1B) Bail Act.
*** must not be done in chambers DPP v WALLMAN [2017] NSWSC 40
What happens after 6 months in regards to a person being admitted for treatment under s. 33?
What happens if they person is returned to court before 6 months have expired?
- If a defendant has been admitted for treatment pursuant to s.33, after the expiration of 6 months the offence is taken to be dismissed. (S.33(2)) (held in MH facility for 6 months)
- If the defendant was admitted for treatment and was returned to the court for the matters to be dealt with on sentence before the 6 months expired, the court must take into account the amount of time the defendant was in hospital: ss3.
What does s. 36 of the MH(FP)A state?
- The Magistrate may inform him/herself as he or she thinks fit, but not so as to require a defendant to incriminate him/herself. (prefer Psychiatrist report but not always available)
Section 32 applies to who? When can a s. 32 apply?
- Cognitively impaired s.32 (6)
- Mental illness
- Mental condition
- At the time of the application OR at the time of the offence
Section 33 applies to who?
When can a s. 33 apply?
- Mentally ill (s14 MHA) – “Really unwell people”
- Mentally disordered (s15 MHA) – People behaving irrationally
S32, What should prosecutor assist court with?
Proper applications of S32.
What do you need to do if you disagree with the finding of the psychologist report?
Call expert evidence
Do we generally oppose s32? Why/why not?
Generally oppose
- not the most appropriate way to deal with the defendant (ie. it is not in the interest of the public or community safety considering objective seriousness of the offence, defendant’s antecedents, etc).
