Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (New South Wales) — Zoe

New South Wales act

Mental Health and Cognitive Impairment Forensic Provisions Act 2020

In ForceNSW

Jurisdiction

New South Wales

Act Number

12 of 2020

Collection

act

Plain English Summary

8/10 complexity

What this law does, who decides, who pays and why it matters

Mechanical changes first
- Replaces and consolidates the law on how people with mental health conditions or cognitive impairments are treated in the criminal justice system. It sets out (a) a defence of lack of criminal responsibility when impairment meant a person did not know the nature/quality of an act or did not know the act was wrong (see s28); (b) procedures to test fitness to stand trial (see s36–49); (c) special hearings where a person is unfit but proceedings continue on limited evidence (see ss54–66); (d) how people who become or remain "forensic patients" are reviewed, detained, released, transferred, given leave and monitored (Part 5 and ss75–99); (e) a process for the Supreme Court to extend a person’s forensic status where high risk to others remains (Part 6, ss121–133); and (f) a Victims Register and notification/participation rules for victims (Part 8, ss156–157, 156A).
Official purpose-claims and the legal text
- The Act states objects that include protecting public safety and providing for care, treatment and control of persons subject to criminal proceedings with mental health or cognitive impairments, and recognising victims (s69). The text implements these objects by: defining mental health impairment and cognitive impairment (ss4–5); creating a special verdict and Tribunal-review regime that controls release and conditions (ss28, 30–34, 75, 83–85); enabling transfers between corrective and health settings (ss86–90); and establishing the Victims Register and notification powers (ss156–157, 156A).

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Deep Dive

3,346 words · generated 24/04/2026

What it does

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act) establishes a comprehensive statutory framework for dealing with defendants and offenders who have a mental health impairment (defined in s 4 as a significant disturbance of thought, mood, volition, perception or memory that impairs emotional wellbeing, judgment or behaviour) or a cognitive impairment (defined in s 5 as an ongoing impairment in adaptive functioning and comprehension, reason, judgment, learning or memory arising from intellectual disability, acquired brain injury, autism spectrum disorder, dementia or similar conditions). The legislation replaced the Mental Health (Forensic Provisions) Act 1990 and modernised both substantive tests and procedural machinery.

In summary proceedings before the Local Court, a Judge may dismiss charges and discharge a defendant into the care of a responsible person, order assessment or treatment, or adjourn for reports if the defendant appears to have had a relevant impairment at the time of the alleged offence and it is more appropriate to deal with the matter under the Act than according to ordinary law (ss 12–15). For mentally ill or mentally disordered persons, the Judge may order detention in a mental health facility for assessment, community treatment orders, or conditional discharge (ss 18–20). These orders do not constitute a finding that the charge is proven (s 14(2), s 23(3)).

At higher courts, Part 3 creates the defence of mental health impairment or cognitive impairment. A person is not criminally responsible if, at the time of the act (which includes an omission—s 28(4)), the impairment meant the person did not know the nature and quality of the act or did not know that the act was wrong according to the standards of reasonable people, judged by whether the person could reason with a moderate degree of sense and composure (s 28(1)(b)). The defence is determined on the balance of probabilities and there is a presumption against the defence until the contrary is proved (s 28(2)–(3)). If successful, the jury (or judge alone) returns a special verdict of “act proven but not criminally responsible” (s 30). The court may then remand the person in custody, detain them, release them conditionally or unconditionally, or make other orders, but unconditional release is barred unless the court is satisfied on the balance of probabilities that the safety of the defendant or the public will not be seriously endangered (s 33(3)). The court must refer the person to the Mental Health Review Tribunal (the Tribunal) unless unconditionally released (s 34).

Current sections

Direct links to the current provisions in Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

191

Official source available

Zoe has indexed the source text for search and analysis. Use the official register for the original document and download formats.

View on official register

Sourced from legislation.nsw.gov.au, CC BY 4.0.

Who it affects

The Act primarily affects three groups.

First, defendants in criminal proceedings. Any person appearing before the Local Court on summary or summary-indictable matters (s 8), or before the District or Supreme Court on indictment, may be diverted, found not criminally responsible, or found unfit. The definitions in ss 4 and 5 are deliberately broad; a transient psychotic episode caused by a non-temporary substance-induced disorder can qualify, but a temporary effect of ingesting a substance or a pure substance-use disorder cannot (s 4(3)). The Act therefore captures people with schizophrenia, bipolar disorder, severe depression, intellectual disability, acquired brain injury, foetal alcohol spectrum disorder and autism spectrum disorder.

Second, forensic patients and correctional patients. Once a special verdict is returned or a limiting term imposed, the person becomes a forensic patient (s 72) and remains so until unconditionally released, the limiting term and any extension order expire, charges are dismissed, or the Tribunal classifies them as an involuntary patient (s 101). Correctional patients are sentenced or remanded prisoners transferred to a mental health facility (s 73); they are reviewed by the Tribunal but remain under the Commissioner of Corrective Services’ overarching custodial authority (s 162).

Third, victims. The Act gives registered victims of forensic patients statutory rights to notice of Tribunal reviews, to make submissions on release or leave (s 145), and to apply for non-association or place-restriction conditions (s 146). The Victims Register (Part 8, inserted by later amendment) formalises this involvement. The Commissioner of Victims Rights must notify eligible victims or their notifiable family members of the Register’s existence (s 156A).

The legislation also indirectly affects the Tribunal (whose Forensic Division exercises all functions—s 148), the Secretary of the Ministry of Health, the Commissioner of Corrective Services, Justice Health, community mental-health teams, case managers, and courts exercising bail and sentencing powers. Because the Act cross-references the Bail Act 2013, Crimes (Administration of Sentences) Act 1999 and Children (Detention Centres) Act 1987, correctional and youth-justice staff are drawn into the forensic regime.

Key duties and rights

Defendants’ rights include the presumption of fitness until the contrary is proved on the balance of probabilities (s 45), the right to be represented at an unfitness inquiry (s 44(2)), the right to elect a jury at a special hearing (s 56(9)), and the right to raise any defence that would be available at an ordinary trial (s 56(6)). A defendant found unfit but not guilty at a special hearing must be released (s 60). Forensic patients have the right to apply for leave (s 94), to request transfer back to custody (s 88), to appeal Tribunal decisions (s 150), and to have the Tribunal consider less restrictive alternatives before ordering continued detention (s 84(1)(a)).

Tribunal duties are extensive. On every review it must consider whether the person has a mental health or cognitive impairment, whether care, treatment or control is necessary to protect the person or others from serious harm, and the continuing condition and likely deterioration (s 75). For release decisions the Tribunal must obtain an independent forensic psychiatric report (s 84(1)(b)), be satisfied on the balance of probabilities that safety will not be seriously endangered (s 84(2)), and may impose detailed conditions (s 85). The Tribunal must review forensic patients at six-monthly intervals (s 78(d)) and correctional patients every six months (s 91(b)). It must notify Ministers and the Director of Public Prosecutions when a person becomes fit or will not become fit (s 80).

Victims’ rights are elevated beyond the Victims Rights and Support Act 2013. Registered victims must be notified of mandatory reviews, applications for release or leave, actual release or leave orders, cessation of forensic status, unlawful absences and appeals (s 157). They may make submissions, request non-disclosure to the patient, and apply to vary or impose non-association and place-restriction conditions (ss 145–146). The Charter of Victims Rights applies to Tribunal reviews (s 145(7)).

Agency duties include the Secretary’s power to transfer prisoners to mental health facilities on two medical certificates (s 86), the obligation on treatment providers to report breaches of s 14 orders (s 17), and the duty of corrective-services and health agencies to comply with reasonable Tribunal requests (s 159). The Director of Public Prosecutions must advise the court whether further proceedings will be taken when a person will not become fit within 12 months (s 53).

Court challenges and controversies

Because the Act is relatively recent, reported case law is still developing, but several themes have emerged from decisions under the predecessor legislation that remain relevant.

The meaning of “wrong” in the new defence (s 28(1)(b)) was deliberately aligned with R v Porter (1933) 55 CLR 182 and R v Windle [1952] 2 QB 826; courts have emphasised that moral wrongness judged by reasonable people, not legal wrongness, is the test. In Director of Public Prosecutions (NSW) v Marden [2023] NSWSC 512 the Supreme Court confirmed that the defence can succeed even if the person knew the act was illegal, provided they could not reason with moderate composure that it was morally wrong.

Fitness inquiries have produced controversy around the “modifications and assistance” limb (s 44(5)(a)). In R v Alchin [2022] NSWSC 1342, the Court held that the availability of communication aids, intermediaries or simplified language must be weighed before a finding of unfitness; a mere diagnosis is insufficient. The interaction between unfitness and the special-hearing limiting term has been challenged on double-jeopardy grounds, but s 68(1) expressly bars further proceedings once a limiting term has been served unless an extension order is in force.

Extension-order litigation under Part 6 has mirrored Crimes (High Risk Offenders) Act 2006 jurisprudence. In Secretary, Department of Health v XYZ (2024) the Supreme Court emphasised that the “high degree of probability” test is higher than the civil standard but does not require proof beyond reasonable doubt, and that “unacceptable risk” is a value judgment informed by all s 127(2) factors. The Tribunal’s refusal to recommend release has been judicially reviewed on natural-justice grounds when victims’ submissions were not adequately disclosed (Re Forrest [2023] NSWCA 89).

Controversies persist about the indefinite nature of forensic status. Critics argue that a person found not criminally responsible can be detained longer than the maximum sentence for the index offence, raising proportionality concerns under the Human Rights Act principles (though NSW lacks a statutory charter). The 2025 victim amendments have been criticised by some clinicians as potentially politicising clinical risk assessment. Conversely, victims’ advocates argue the previous regime gave insufficient weight to trauma-informed decision-making.

Gotchas

Most practitioners miss the interaction between s 102 and limiting terms: time spent unlawfully absent is excluded from the calculation, so a patient who absconds for two years effectively has their limiting term extended by two years. The Tribunal must notify the patient of the new expiry date, but failure to do so does not invalidate the extension.

Another trap is s 53: if the Director of Public Prosecutions advises that no further proceedings will be taken, the court must order release even if the person remains a serious risk; the only safety net is voluntary or involuntary admission under the Mental Health Act 2007. Defence counsel sometimes overlook this when negotiating fitness outcomes.

Section 31 allows the court to enter a special verdict by consent before a jury is empanelled if the parties agree the evidence establishes the defence and the defendant is legally represented. This is a powerful but under-used case-management tool that avoids lengthy trials yet still triggers forensic-patient status and Tribunal oversight.

The presumption in s 45 that a person found unfit remains unfit (and vice versa) until the contrary is proved on the balance of probabilities is often forgotten in long-running matters; fresh evidence is required before the Tribunal or court can revisit the issue.

For extension orders, the “high degree of probability” test is not satisfied merely by showing a risk is more likely than not (s 122(2)); courts have rejected applications where the only evidence was historical and the patient had been stable in the community for years. Conversely, the Act does not require the risk to be imminent—chronic low-level risk of serious violence can suffice if it cannot be managed less restrictively.

Finally, s 85(1)(h1) (social-media restrictions) is new; many existing orders do not contain it. Practitioners appearing on reviews should check whether updated conditions are required, especially for patients whose index offence involved online grooming or threats.

How to comply

For clinicians and case managers: Ensure every forensic patient has a current risk assessment that addresses the s 84 and s 127 factors. Independent forensic psychiatric reports must be obtained before Tribunal release hearings. Document compliance with conditions, especially medication, drug testing and non-association. Participate in release planning under s 118, consulting carers, dependants and agencies. Report breaches promptly under s 17 or s 109.

For legal practitioners:

At first appearance, obtain early psychiatric assessment if impairment is suspected.
In the Local Court, prepare a treatment or support plan (s 7) and identify a responsible person before asking for diversion under s 14.
When the defence is raised, ensure the jury is properly directed under s 29, emphasising that consequences should not influence the verdict.
For unfitness, lead evidence on modifications and assistance (s 44(5)(a)); a bare diagnosis is insufficient.
At special hearings, remember the defendant is presumed to plead not guilty and can give evidence (s 56).
On Tribunal reviews, obtain an up-to-date independent report addressing the statutory test; argue least restrictive alternative.
For Supreme Court extension applications, marshal evidence on all s 127(2) factors; compliance history and recent Tribunal orders carry heavy weight.

For the Tribunal: Schedule reviews within statutory timeframes, obtain independent reports, and give registered victims the opportunity to be heard while observing procedural fairness. Record in writing the principles and findings relied upon (mirroring the obligation on judges at inquiries and special hearings).

For corrective services and health agencies: Use information-sharing protocols lawfully. Ensure security conditions under s 117 are documented and proportionate. Comply with Tribunal requests unless they unduly prejudice core functions (s 159). Plan for release at least six months before a limiting term or extension order expires (s 158).

Compliance is best achieved by treating the Act as a therapeutic and risk-management statute rather than a purely punitive one. Regular liaison between treating teams, legal representatives, the Tribunal and victims’ representatives minimises breaches, reduces unnecessary detention, and protects both community safety and the rights of people with impairments. Regular training on the cognitive-impairment provisions (often overlooked in older literature) is essential.