Criminal Justice (Mental Impairment) Act 1999

In ForceTAS

Jurisdiction

Tasmania

Act Number

21 of 1999

Collection

act

Plain English Summary

8/10 complexity

What this law does (mechanics)

Establishes procedures for courts to deal with defendants who may be mentally impaired so they can or cannot stand trial (Part 2: ss 8–20). For example, a person is "unfit to stand trial" if they cannot understand the charge, plead, follow proceedings, or make a defence (s 8). Fitness is presumed unless proved on an investigation (s 9).
Sets out how courts investigate fitness (who can ask for it, evidence, expert examination, jury role in the Supreme Court) and what happens if a person is found unfit (investigation procedure, adjournment up to 12 months, special hearing to test guilt on limited evidence) (ss 10–17).
Provides outcomes when someone is found not guilty by reason of insanity or when a special hearing cannot find a verdict. The court must choose among a set of disposals: a restriction order (secure detention), a supervision order (community release under supervision), a treatment order (as defined in the Mental Health Act 2013), conditional release, or unconditional release (ss 18, 21).
Defines restriction orders (detention in a secure mental health unit) and supervision orders (release under the Chief Psychiatrist's supervision with conditions that can include compulsory medication or directions) and the powers connected to each, including apprehension, detention time limits, and suspension when imprisoned (ss 24, 29A, 31, 31A).
Gives courts and the Supreme Court powers to vary, revoke or discharge restriction and supervision orders and prescribes who may apply for discharge and how often (ss 26–30). The Supreme Court alone can make restriction or supervision orders in certain post-verdict contexts (ss 18(3), 21(2)).

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What it does

The Criminal Justice (Mental Impairment) Act 1999 establishes the legal framework in Tasmania for dealing with defendants whose mental processes are disordered or impaired and who are therefore unfit to stand trial, or who are found not guilty by reason of insanity (or the equivalent finding). It applies to all courts in Tasmania (section 4(1)) and extends to restriction orders and supervision orders made under the Sentencing Act 1997 (section 4(2)). The Act creates a structured pathway from the point at which a defendant's fitness to stand trial is raised, through investigation and determination by the court, to the making of one of a set of legally available orders. It also governs the ongoing supervision, review, variation, and discharge of those orders. The Act does not create new criminal offences or prescribe penalties for the underlying conduct; instead it provides the procedure and disposition options that apply once a mental impairment issue is properly before a court. The Act addresses two distinct but related scenarios: first, a defendant who is currently unfit to stand trial (Part 2, sections 8 to 20), and second, a defendant who has been found not guilty by reason of insanity at trial (Part 3, section 21). In both situations the court may make a restriction order (detention in a secure mental health unit), a supervision order (community release under supervision), a treatment order under the Mental Health Act 2013, release on conditions, or unconditional release. Only the Supreme Court may make a restriction order or a supervision order (sections 18(3) and 21(2)). The Act also provides for special hearings for defendants who are unlikely to become fit within 12 months, breach of conditions on release, forensic order review by the Tasmanian Civil and Administrative Tribunal, appeals to the Court of Criminal Appeal, and the apprehension of defendants who contravene supervision orders. The guiding principle is that restrictions on a defendant's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community (section 34).

Current sections

Direct links to the current provisions in Criminal Justice (Mental Impairment) Act 1999.

Official source available

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Sourced from Tasmanian Legislation Online (legislation.tas.gov.au), CC BY 4.0.

Main concepts

The Act defines several interconnected concepts. At its core is the distinction between unfitness to stand trial and the defence of insanity. A person is unfit to stand trial if, because their mental processes are disordered or impaired or for any other reason, they are unable to understand the nature of the charge, plead to it or exercise the right of challenge, understand the nature of the proceedings, follow the course of the proceedings, or make a defence or answer the charge (section 8(1)). A person is not unfit solely because of memory loss (section 8(2)). Fitness is presumed unless established on the balance of probabilities (section 9(1) and (2)). If the court finds a real and substantial question as to fitness exists, it must conduct an investigation (section 10(5)). In the Supreme Court, fitness is determined by a jury (section 12(1)). If the jury finds unfitness, it must also decide whether the defendant is likely to become fit within the next 12 months (section 12(4)). A special hearing is held if the defendant is not likely to become fit within 12 months or does not become fit within that period (section 15). At a special hearing, the onus and standard of proof are the same as in a criminal trial, and the defendant is taken to have pleaded not guilty (section 16). The available findings are: not guilty, not guilty on the ground of insanity, or that a not guilty finding cannot be made (section 17). A restriction order under section 24 requires the person to be admitted to and detained in a secure mental health unit until discharged by the Supreme Court. A supervision order under section 29A releases the person under the supervision of the Chief Psychiatrist on conditions, which may include requirements to take medication or comply with directions. The term "forensic order" is defined in section 3 to mean a restriction order or supervision order. A treatment order has the same meaning as in the Mental Health Act 2013 (section 3). A key procedural concept is that the same jury may determine fitness, hold the special hearing, and try the offence if the defendant later becomes fit (section 20). The Act gives the legal representative an independent discretion to act in the defendant's best interests if the defendant is unable to give instructions (section 38). Reports from the Chief Psychiatrist and another expert who have personally examined the defendant are required before a restriction order can be discharged, or the defendant released, or supervision significantly reduced (section 35(2)). The Act creates an appeal right to the Court of Criminal Appeal for the Attorney-General, the Secretary of the responsible Department, or the defendant from a decision or order of the Supreme Court under Part 4 (section 36). The Tribunal (Tasmanian Civil and Administrative Tribunal) must review forensic orders at least once every 12 months (section 37(1)), applying the same minimum-restriction principle and the same factors the court considers.

Who it affects

The Act directly affects defendants in criminal proceedings in Tasmania whose mental capacity is called into question. This includes persons charged with any offence in any court (the Act applies to all courts: section 4(1)). It also affects persons already subject to forensic orders or treatment orders, as the definition of "defendant" in Part 4 expressly includes such persons (section 22). The Act imposes obligations on the courts before which these issues arise. Only the Supreme Court may make a restriction order or a supervision order (sections 18(3) and 21(2)), but magistrates may refer a matter to the Supreme Court if they consider a forensic order should be made (section 36A). The Director of Public Prosecutions must be served with applications for discharge of restriction orders and must appear for the Crown (section 26(3)(a) and (b)). The Chief Psychiatrist features centrally: authorised persons are appointed by the Chief Psychiatrist (section 3); the Chief Psychiatrist supervises persons under supervision orders (section 29A); must be notified of objections to medication (section 29A(3)); can apply for variation or revocation of supervision orders (section 30); must provide reports on the defendant's condition before discharge or significant reduction in supervision (section 35(2)); and may authorise detention extensions following apprehension (section 31(6)(b)). The Chief Psychiatrist also receives reports on the defendant and provides reports to the court (section 39B). The Secretary of the responsible Department in relation to the Mental Health Act 2013 may apply for discharge of restriction orders and variation or revocation of supervision orders (sections 26(1) and 30(1)). The controlling authority of a secure mental health unit and of approved hospitals are involved in the detention, transfer, and reporting of defendants (sections 30(4), 31, 42A). The Director of Corrective Services is defined (section 3) and must receive reports if the defendant is remanded to prison (section 42A(2)(c)). Victims and next of kin are given specific procedural rights: the Attorney-General must provide a report on their views to the court (section 33), and they must be given reasonable notice of proceedings that could lead to the defendant's release or a significant reduction in supervision (section 35(2)(c)). The definition of "victim" in section 3 includes a person who suffered significant mental or physical injury as a direct consequence of the offence or conduct, and includes the immediate family of a deceased victim. "Next of kin" includes spouse, parents, children, primary carer, and a person in a caring relationship under the Relationships Act 2003. The Tasmanian Civil and Administrative Tribunal (the Tribunal) reviews forensic orders at least annually (section 37(1)) and may issue certificates for discharge, revocation or variation. The Mental Health Act 2013 and its concepts of approved hospital, secure mental health unit, treatment order, and mental health officer are incorporated by reference. The regulations under section 43 can prescribe additional classes of persons as next of kin.

Key duties and rights

The Act imposes distinct duties on the court, the prosecutor, the defence, the Chief Psychiatrist, and other bodies. A court must not conduct an investigation into fitness unless there appears to be a real and substantial question as to fitness (section 10(5)). The court must hear relevant evidence and representations from both sides, may call its own evidence, and may require the defendant to undergo an examination by a psychiatrist or other expert (section 11). If the defendant is fit, the court must resume proceedings (section 13). If unfit, the court must determine whether the defendant is likely to become fit within 12 months and, if so, adjourn for up to 12 months (section 14). If the grounds for the investigation no longer exist after adjournment, the court may decide not to proceed (section 14(3)). The prosecutor and defendant must agree before the court may dispense with or terminate an investigation and simply record a finding of unfitness or proceed as if fit (section 19). At a special hearing, the defendant has the right to be represented, give evidence, raise any defence, and have the legal representative exercise jury challenges (section 16). The defendant also has the right to be present at hearings for discharge of restriction orders unless the court orders otherwise (section 26(3)(c)), and at hearings for variation or revocation of supervision orders (section 30(7)(c)). A defendant subject to a restriction order may apply to the Supreme Court for discharge, but the first application cannot be made less than two years after the order was made, and subsequent applications must be at least two years apart (section 26(1)). A defendant subject to a supervision order may apply for variation or revocation at any time, but if the Supreme Court refuses an application, a further application cannot be made within six months (or such other period as the court directs) (section 30(3)). The Director of Public Prosecutions must appear for the Crown on applications for discharge of restriction orders (section 26(3)(b)). The Attorney-General must provide the court with a report on the views of victims and next of kin to assist in proceedings under Part 4 (section 33). The Chief Psychiatrist must inform the Attorney-General in writing if a defendant found unfit becomes fit to stand trial (section 29(1)). On receiving that notification, the Attorney-General must either request the court to resume proceedings or determine that no further proceedings will be taken and advise the defendant accordingly (section 29(3) and (3A)). The Act imposes a duty on the person responsible for medical treatment under a supervision order to notify the Tribunal in writing within seven days if the defendant objects to taking medication or medical treatment (section 29A(3)). The person preparing a report for the court must provide a copy to the applicant, the defendant, and the Director of Public Prosecutions as soon as practicable (sections 26(4), 30(6), 39(1C)). The parties have the right to cross-examine the maker of a report tendered as evidence (sections 26(3)(f), 30(7)(f)). The Tribunal, when reviewing a forensic order, must apply the minimum-restriction principle and have regard to the matters in section 35(1) (section 37(2)). If the Tribunal determines a forensic order is no longer warranted or the conditions are inappropriate, it must issue a certificate, and the defendant may immediately apply to the Supreme Court for discharge, revocation, or variation (section 37(3)).

Penalties and enforcement

The Act does not impose criminal penalties for non-compliance in the traditional sense; rather, it provides enforcement mechanisms through apprehension and revocation or substitution of orders. A defendant who breaches conditions imposed under section 18(2)(e) or 21(1)(e) (release on conditions) may be the subject of an application to the court that imposed the conditions (section 21A(1)). The application may be made by an authorised person, a police officer, a prosecutor, a probation officer, or the Chief Psychiatrist (section 21A(2)). If a defendant fails to appear at the hearing, the court may issue a warrant for arrest (section 21A(4)). If a defendant is found guilty of an offence punishable by imprisonment committed while on conditional release, an oral application may be made to the court dealing with that new offence (section 21A(5)). On finding a breach, the court may confirm the conditions, impose new conditions, or revoke the conditional release and deal with the defendant afresh under section 18(2) or 21(1), which mean the defendant could be made subject to a restriction order or supervision order (section 21A(7)). The court must take into account the extent of compliance before the breach (section 21A(8)). A more immediate enforcement mechanism exists for supervision orders: prescribed persons (the Chief Psychiatrist, a person administering medical treatment, a person authorised to supervise, an authorised person, a mental health officer, or a police officer) may apprehend a defendant without warrant if they believe on reasonable grounds that the defendant has contravened or is likely to contravene the order, or that there has been or is likely to be a serious deterioration in the defendant's mental health, and that because of the breach or deterioration there is a risk of harm to self or another (section 31(2)). The apprehended defendant must be taken to an approved hospital or secure mental health unit as soon as practicable (section 31(3)). The defendant may be detained in the secure mental health unit for 24 hours, extended once by the Chief Psychiatrist up to 72 hours, and further extended by the Tribunal for one or more periods of length determined by the Tribunal (section 31(6)). If an application to the Tribunal is pending, the defendant may be detained until determination (section 31(7)). If an application to the Supreme Court for variation or revocation of the supervision order is made during detention, the defendant may be detained until that application is determined (section 31(8)). While detained under this section, the supervision order is suspended (section 31(9)). If a defendant is sentenced to imprisonment while subject to a supervision order, the order is suspended for the duration of the imprisonment (section 31A). The Act also provides for arrest without warrant of a person who escapes from detention under a restriction order or is absent without proper authority (section 41(1)). For interstate escapes, a judge of the court that committed the person may issue a warrant (section 41(1A)). Similar provisions exist for treatment orders (section 41(1B)). For a supervision order, a judge may issue a warrant for arrest and return to court if the person has contravened a condition and left the State (section 41(2)). In exercising any of these enforcement powers, a prescribed person may use such restraint and force as they believe appropriate, may be assisted, and may enter premises without warrant (section 31(5)). The custody and escort provisions of the Mental Health Act 2013 apply (section 31(5A)).

How it interacts with other laws

The Criminal Justice (Mental Impairment) Act 1999 is not a standalone code; it operates in close conjunction with several other Tasmanian statutes. Most significantly, it incorporates key definitions and mechanisms from the Mental Health Act 2013. The terms "approved hospital", "Chief Psychiatrist", "secure mental health unit", "treatment order", "controlling authority", "mental health officer", and "involuntary patient" all take their meaning from the Mental Health Act 2013 (section 3). A treatment order made under this Act is taken to have been made under Division 2 of Part 3 of Chapter 2 of the Mental Health Act 2013 (sections 18(4) and 21(3)). The Act also works alongside the Sentencing Act 1997: restriction orders and supervision orders can be made under the Sentencing Act 1997 and still fall within the scope of this Act (section 4(2)). Section 41 deals with arrest of persons escaping from detention under a restriction order made under this Act or the Sentencing Act 1997. The Act excludes the operation of two other laws in certain circumstances: section 38 of the Guardianship and Administration Act 1995 and section 213 of the Mental Health Act 2013 do not apply to the taking of medication or administration of medical treatment required under a supervision order, even if the defendant objects (section 29A(4)). The Act interacts with the Juries Act 2003, which applies to the constitution and proceedings of juries empanelled for fitness investigations and special hearings in the Supreme Court (sections 12(2) and 15(4)). The Youth Justice Act 1997 is relevant: a court may not commit a person under 18 years to a secure mental health unit unless the Chief Psychiatrist reports that the unit is the most appropriate place available having regard to the objectives and general principles of sections 4 and 5 of the Youth Justice Act 1997 (section 39A). The Relationships Act 2003 is used to define "spouse" (includes a significant relationship) and "next of kin" (includes a caring relationship) (section 3). The Corrections Act 1997 provides the meaning of "probation officer" for the purposes of applications for breach of conditions (section 21A(2)(d)). The Director of Corrective Services is defined (section 3) and receives reports if the defendant is remanded to prison (section 42A(2)(c)). The Act also contains savings and transitional provisions connecting it to its predecessor regimes. Persons detained under a restriction order under section 382 of the Criminal Code or under Division 2 of Part IV of the Mental Health Act 1963 are taken to be subject to a restriction order under this Act (section 42(1)). Orders made under the former version of this Act (before the Mental Health Amendment (Secure Mental Health Unit) Act 2005) continue in effect (section 44). Supervision orders made by courts other than the Supreme Court under the former Act are taken to have been made by the Supreme Court under this Act (section 44(3)). Continuing care orders and community treatment orders in force immediately before the commencement of the Mental Health Act 2013 continue in effect as if they were treatment orders under that Act (section 44A). The regulations under section 43 may include savings or transitional provisions consequent on any amending Act.

Amendment history

The Act has been amended multiple times since its original enactment in 1999. The most substantial restructuring occurred through the Mental Health Amendment (Secure Mental Health Unit) Act 2005 (Act No. 72 of 2005), which commenced on 20 February 2006. That amending Act repealed sections 6 and 7 (s.92), substituted the key disposition sections 18, 21, 24, 27, and 29A, inserted Part 3A (breach of conditions), Division 5A (later repealed), sections 31A, 35A, 36A, 39A, 39B, 39C, 41A, and 42A, and substituted the regulation-making and transitional provisions in sections 43 and 44. It also amended the definitions in section 3 to include "restriction order" and "supervision order" as subtypes of "forensic order". The Relationships Act 2003 (No. 45 of 2003) amended the definition of "next of kin" and "spouse" in section 3 from 1 January 2004. The Juries Act 2003 (No. 48 of 2003) amended sections 12 and 15 from 1 January 2006 to refer to that Act. The Mental Health Act 2013 (No. 69 of 2013) made significant amendments from 17 February 2014: it replaced references to the former Mental Health Act 1996 with the new Mental Health Act 2013, substituted the definitions of "approved hospital", "Chief Psychiatrist", "secure mental health unit", and "treatment order", repealed former Division 5A (sections 31B and 31C), amended sections 18(2), 21(1), and 29(1) to accommodate treatment orders, and inserted transitional section 44A. The Legal Profession Act 2007 (No. 66 of 2007) amended section 39B(3) from 31 December 2008 to refer to "Australian legal practitioner". The Justice and Related Legislation (Miscellaneous Amendments) Act 2010 (No. 3 of 2010) amended section 3 (definition of "psychiatrist") and inserted section 35(4) (definition of "medical practitioner") from 1 July 2010. The Criminal Justice (Mental Impairment) Amendment Act 2016 (No. 21 of 2016), commencing 11 July 2016, made significant changes: it inserted new section 10(2) (reservation of fitness question for Supreme Court at preliminary proceedings), amended sections 17, 18(4), 21(3), inserted sections 35A (interim orders), 36A (referral of forensic order by magistrate), and amended section 31 (apprehension) to include custody and escort provisions. The Tasmanian Civil and Administrative Tribunal (Consequential Amendments) Act 2021 (No. 18 of 2021), commencing 5 November 2021, substituted the definition of "Tribunal" in section 3 to mean the Tasmanian Civil and Administrative Tribunal, and amended sections 29A(3), 31(6) and (7), and 37 to refer to the Tribunal instead of the Mental Health Tribunal. The Mental Health Amendment (Authorised Persons and Other Matters) Act 2023 (No. 4 of 2023), commencing 25 September 2023, amended the definitions of "authorised person" and "Chief Psychiatrist" in section 3, amended sections 21A(2)(e), 26(1) and (3)(g), 29(1) (substituted), 29(3A)(c), 30(1), (4), (5), (6), and (7)(g) to refer to the Chief Psychiatrist (replacing the Secretary), amended section 31(1)(a), (b), (c), and (6)(b) and inserted references to Chief Psychiatrist, amended section 35(2)(a) and (4)(b), inserted section 39(1A)(c), amended section 39A, and added section 41A (authorisation of persons). Finally, the Mental Health Amendment Act 2025 (No. 7 of 2025), commencing 1 July 2025, inserted section 37(1A) providing that a suspended supervision order may still be reviewed.

Litigation history

The Act as provided does not itself cite any judicial decisions. No case names appear in the text. However, the Act establishes a comprehensive appellate structure. Section 36 provides that an appeal lies to the Court of Criminal Appeal from a decision or order of the Supreme Court made under Part 4. The appeal may be brought by the Attorney-General, the Secretary of the responsible Department (in relation to the Mental Health Act 2013), or the defendant. The Court of Criminal Appeal may affirm, quash, or substitute any other decision or order as it thinks proper (section 36(3)). This appellate pathway would generate case law interpreting the Act. The definition of "decision" in section 36(1) includes a determination, a declaration, and a finding, so the appeal right is broad. The Act also includes a specific provision on jury determination of fitness in the Supreme Court (section 12) and on jury determination at special hearings (section 15(3)), which could give rise to appeals on procedural grounds. The provision that the same jury may determine fitness, hold the special hearing, and try the offence (section 20) is a notable procedural mechanism that could be the subject of appellate consideration. Section 40 provides that a finding on a fitness investigation or special hearing does not constitute an issue estoppel against the defendant in later civil or criminal proceedings, and evidence of such a finding is not admissible against the defendant in criminal proceedings. This provision could be engaged in litigation about the use of earlier mental impairment findings. The Act also contains detailed evidentiary and procedural protections: the right to cross-examine experts who prepare reports (sections 26(3)(f) and 30(7)(f)), the requirement that the Director of Public Prosecutions appear on applications for discharge of restriction orders (section 26(3)(b)), and the requirement that the court consider reports from two experts who have personally examined the defendant before discharging a restriction order or significantly reducing supervision (section 35(2)(a)). These provisions create a fertile ground for decisions on the sufficiency of evidence and procedural fairness. The definition of "unfit to stand trial" in section 8(1) is exhaustive but subject to the memory-loss exception in section 8(2), which is a specific provision that could be judicially considered. The standard of proof for unfitness is the balance of probabilities (section 9(2)), and the presumption of fitness is in section 9(1). The requirement that a court not investigate fitness unless there is a "real and substantial question" (section 10(5)) sets a threshold that courts have had to define. The time limits for applications for discharge of restriction orders (two-year intervals: section 26(1)) and for fresh applications for variation of supervision orders after refusal (six months unless directed otherwise: section 30(3)) are likely to be litigated in the context of changed circumstances. The power of a magistrate to refer a matter to the Supreme Court if of the opinion that a forensic order should be made (section 36A) raises questions about the threshold for forming that opinion. The Act itself does not reproduce the full text of decided cases, but practitioners should note that all these provisions are regularly considered by the Supreme Court of Tasmania and the Court of Criminal Appeal.

Gotchas

Several provisions in the Act contain traps for the unwary. First, the definition of "victim" in section 3 is potentially broader than expected: it includes a person who has suffered significant mental or physical injury as a direct consequence of the offence or conduct, and extends to the immediate family of a deceased victim. This means that the court must consider the views of a potentially large group of people before making decisions about release or supervision, and the court must be satisfied that both next of kin and victims have been given reasonable notice of proceedings that could lead to the defendant's release or a significant reduction in supervision (section 35(2)(c)). Failure to provide notice could invalidate a decision. Second, the requirement in section 35(2)(a) that the court must have considered reports from the Chief Psychiatrist (or a medical practitioner nominated by the Chief Psychiatrist) and one other expert, each of whom has personally examined the defendant, before discharging a restriction order, releasing the defendant, or significantly reducing supervision is a mandatory precondition. A court cannot rely on written submissions or earlier reports alone; personal examination by two independent experts is required. Third, the power to dispense with or terminate an investigation into fitness under section 19 requires the agreement of both the prosecutor and the defendant. A court cannot do this unilaterally. Fourth, the provision that a person is not unfit solely because of memory loss (section 8(2)) can be a trap for defence counsel who assume that a defendant with genuine amnesia is automatically unfit. Fifth, only the Supreme Court may make a restriction order or a supervision order (sections 18(3) and 21(2)). A magistrate who considers that a forensic order is necessary must refer the matter to the Supreme Court under section 36A, not make the order directly. Sixth, the time limits for applications for discharge of a restriction order are strict: the first application cannot be made until at least two years after the order was made, and subsequent applications must be at least two years apart (section 26(1)). There is no exception for changed circumstances, unlike the more flexible provisions for supervision orders. Seventh, while a supervision order may be varied or revoked at any time, if the Supreme Court refuses an application by or on behalf of the defendant, a later application cannot be made for six months (or such other period as the court may direct) (section 30(3)). Eighth, the power of a prescribed person to apprehend a defendant under a supervision order (section 31) does not require a court order. The prescribed person needs only reasonable grounds to believe a breach or deterioration is occurring or likely, and that there is a risk of harm to self or others. This includes the power to enter premises without warrant and use force (section 31(5)). Ninth, the suspension of a supervision order while the defendant is in prison for another offence (section 31A) is automatic; no court order is needed. Tenth, the mandatory notification requirement in section 29A(3): if a defendant subject to a supervision order objects to taking medication or medical treatment, the person responsible for treatment or the Chief Psychiatrist must notify the Tribunal in writing within seven days. Failure to notify does not make the treatment unlawful (section 29A(4) excludes the normal objection procedures), but it could be a breach of the Act. Eleventh, the Act provides that findings on fitness or at a special hearing do not constitute issue estoppel against the defendant in later proceedings (section 40). This means that a finding that the defendant committed the acts in a special hearing cannot be used against them in a later civil suit or criminal trial for the same conduct. Twelfth, for defendants under 18 years, a restriction order or any order committing them to a secure mental health unit cannot be made unless the Chief Psychiatrist provides a report stating that the unit is the most appropriate place available having regard to the Youth Justice Act 1997 principles (section 39A). Finally, practitioners should note that the Act's definition of "psychiatrist" in section 3 is restrictive: a medical practitioner must be a Fellow of the Royal Australian and New Zealand College of Psychiatrists, hold specialist registration in psychiatry, or hold limited registration enabling practice in psychiatry. Not all medical practitioners with psychiatric experience qualify.

How to comply

Compliance with the Criminal Justice (Mental Impairment) Act 1999 depends on the role of the person or body in question. For the legal representative of a defendant, the first step is to identify whether there is a real and substantial question as to the defendant's fitness to stand trial at the earliest possible stage. If so, an application should be made to the court to reserve the question for investigation (section 10(1)). The representative must ensure that the defendant receives competent psychiatric assessment and that the results of any examination are made available to the court (section 11(1)(c)). If the defendant is found unfit and a special hearing proceeds, the legal representative may act in the defendant's best interests even without instructions (section 38). The representative should actively participate in the special hearing, noting that the onus and standard of proof are the same as at trial (section 16(1)). At the disposition stage, the representative should present evidence and submissions on the appropriate order, bearing in mind the court must apply the minimum-restriction principle (section 34) and consider the nature of the mental impairment, the risk of danger to others, the adequacy of community resources, and the likelihood of compliance (section 35(1)). The representative should also ensure that the defendant's next of kin and any victims are given notice of proceedings that could lead to release or reduced supervision (section 35(2)(c)). For the prosecutor, the duty is to ensure that the Director of Public Prosecutions appears on applications for discharge of restriction orders (section 26(3)(b)) and on applications for variation or revocation of supervision orders (section 30(7)(b)). The prosecutor should also provide the court with a report on the attitudes of victims and next of kin (section 33). If the defendant becomes fit to stand trial after a finding of unfitness, the Attorney-General (upon notification from the Chief Psychiatrist) must decide whether to resume proceedings or discontinue them (section 29(3)). For the Chief Psychiatrist, compliance involves: authorising persons to exercise powers under the Act (section 41A); providing reports to the court as required (sections 35(2)(a), 39B); supervising defendants under supervision orders (section 29A(1)); notifying the Tribunal within seven days if a defendant objects to medication or medical treatment (section 29A(3)); informing the Attorney-General when a defendant becomes fit (section 29(1)); making applications for variation or revocation of supervision orders when appropriate (section 30(1)); and providing reports on the suitability of secure mental health units for youths (section 39A). For the controlling authority of a secure mental health unit, compliance involves: admitting defendants taken under section 31(3) or committed under a restriction order; detaining them only for the periods authorised by the Act (section 31(6)); and providing reports as ordered by the Supreme Court (section 30(4)). For the Tribunal, compliance requires reviewing each forensic order within 12 months of its making and at least once every 12 months thereafter (section 37(1)), applying the minimum-restriction principle (section 34) and the factors in section 35(1). If the Tribunal determines that a forensic order is no longer warranted or that conditions are inappropriate, it must issue a certificate, and the defendant may immediately apply to the Supreme Court (section 37(3)). The Tribunal also authorises extended detention of apprehended defendants (section 31(6)(c)). For anyone with proper interest, including family members or victims, applications for variation or revocation of supervision orders may be made to the Supreme Court (section 30(1)). A person who has the care and control of the defendant is deemed to have a proper interest (section 30(2)). General compliance steps include: ensuring all applications to the Supreme Court for discharge of restriction orders are in writing and served on the Director of Public Prosecutions (section 26(3)(a)); ensuring reports prepared for court proceedings are provided to the opposing party and that the maker is available for cross-examination (sections 26(3)(e) and (f), 30(7)(e) and (f)); and ensuring that any person apprehended under section 31 is taken to an approved hospital or secure mental health unit as soon as practicable and that the Chief Psychiatrist is notified. Finally, regulations made under section 43 may impose additional requirements, and practitioners should check whether any regulations are in force that prescribe additional classes of persons as next of kin or deal with savings and transitional matters. The Act's detailed procedural requirements mean that strict attention to timelines and notice provisions is essential for all parties.