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This article was written by Elizabeth Tsitsos - Senior Associate - Sydney

Elizabeth is a highly accomplished defence lawyer with expertise in State and Commonwealth criminal matters including domestic violence, drug supply, sexual assaults including historical child sexual assault cases, and armed robberies involving joint criminal enterprises. Focusing her practice exclusively on criminal defence, Elizabeth has appeared for clients charged with murder, terrorism, sexual assault and drug supply, including cases involving large...

The Mental Health Review Tribunal (NSW)


The Mental Health Review Tribunal (MHRT) is a specialist tribunal that deals with the treatment and care of mentally ill persons in New South Wales. It is a quasi-judicial body constituted under the Mental Health Act 2007 with a wide jurisdiction covering both civil and forensic hearings. This article focuses on forensic hearings in the Mental Health Tribunal only.

Objectives of the Mental Health Review Tribunal

The aim of the MHRT is to pursue the following objectives:

(a)  to provide for the care and treatment of, and to promote the recovery of, persons who are mentally ill or mentally disordered, and

(b)  to facilitate the care and treatment of those persons through community care facilities, and

(c)  to facilitate the provision of hospital care for those persons on a voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis, and

(d)  while protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care and, where necessary, to provide for treatment for their own protection or the protection of others, and

(e)  to facilitate the involvement of those persons, and persons caring for them, in decisions involving appropriate care and treatment.

Who can the Mental Health Review Tribunal make determinations about?

A referral to the MHRT can be made by a criminal court under section 14 of the Mental Health (Forensic Provisions) Act 1990 where the person has been found unfit to be tried in a criminal matter.

The MHRT is also required to review forensic patients. These are persons found by the court to be:

  • guilty on the limited evidence available and subject to a limiting term, and
  • not guilty by reason of mental illness of an offence.

What does the Mental Health Review Tribunal determine?

The determinations the MHRT may make are set out in the Mental Health (Forensic Provisions) Act 1990.

The main reason a person charged with a criminal offence in New South Wales is likely to find themselves before the MHRT is so that the court can determine and order whether that person is presently unfit to be tried and whether they will or will not become fit to be tried within 12 months of the Tribunal’s finding of unfitness.

Following a hearing at the MHRT, the MHRT will send a report to the court which firstly states the determination of the MHRT and secondly a statement of reasons for that determination.

How long does it take the MHRT to make a determination?

Under section 16 of the Mental Health (Forensic Provisions) Act 1990, the MHRT must, as soon as practicable after a person is referred to the tribunal, determine whether, on the balance of probabilities, the person will, during the period of 12 months after the finding of unfitness, become fit to be tried for the offence/s.

What if the MHRT finds the person is fit to be tried?

If the MHRT determines that the person is or will become fit to be tried, the MHRT must also determine whether or not the person suffers from:

  1. A mental illness; or
  2. A mental condition for which treatment is available in a mental health facility, and, if the latter, whether the person objects to being detained in a mental health facility.

Under section 16(3A) of the Mental Health (Forensic Provisions) Act 1990 (NSW), the MHRT may also make recommendations to the court as to the care of the person.

There can be more than one MHRT hearing for a person. For example, the orders deeming the person unfit will be made for a period of 12 months. After that, the person would almost certainly find themselves before the MHRT again to see if they have become fit since the last hearing or if they are still unfit. The “Statement of Reasons” contained with the MHRT’s report to the court will specify whether it’s the first, second, third etc review for that particular person.

Who attends the MHRT hearings?

The following persons commonly attend a person’s MHRT hearing.

  1. The Deputy President (there are two full time and nine part-time Deputy Presidents);
  2. A psychiatrist;
  3. A lawyer who chairs the hearing;
  4. Another suitably qualified member;
  5. The person’s lawyer and the person themself if possible;
  6. The person’s Case Manager;
  7. The person’s Social Worker;
  8. Support persons (e.g. parents);
  9. One observer.

What documents are considered by the MHRT?

The MHRT will consider the following documents.

  1. Any documents from the person’s solicitor that were sent to the MHRT at least two weeks before the hearing date; and
  2. A Forensic Patient Exhibit List (which will also be annexed to the Tribunal’s “Statement of Reasons”).

Are the MHRT hearings open to the public?

Yes, they are open to the public. However, the person’s name, witnesses and persons mentioned in the proceedings will not be published. This means that, even though the public can sit in and listen, the identity of the parties involved in the hearing cannot be published.

Can the MHRT hearings be conducted virtually?

Yes. This was so even before COVID-19. Forensic patients are often in hospital at the time of the hearing so it is not unusual for the hearings to occur remotely.

What other powers does the MHRT have?

The MHRT also has the power to make the decision that a person should become an involuntary patient at a mental health facility and to authorise the continued involuntary detention of a person in a mental health facility.

Does the defence need to obtain its own forensic psychiatric report in preparation for the hearing?

Yes. A defence solicitor would inevitably request a report from a suitably qualified forensic psychiatrist and that report would seek to determine whether the person can:

  • Understand the charges they face;
  • Plead to the charges and exercise their right of challenge (in this regard the person would need to be able to understand that a plea of guilty is an acceptance that the essential facts and elements of the offence/s are established);
  • Understand that the proceedings involve an inquiry as to whether the person committed the offence/s as charged (the person must understand that they are involved in a formal process inquiring into their responsibility for the offence/s alleged and be aware of the potential consequences of that process);
  • Follow the course of proceedings so as to understand what is happening in court in a general sense including following the proceedings and understanding the various roles of the participants. It is worth noting that this does not necessarily require the person to understand the purpose of all various court formalities (this involves In considering whether the person can follow the proceedings, consideration must be had as to their condition and medication and whether they would have difficulty with the pace at which proceedings are conducted;
  • Understand the substantial effect of the evidence that may be given and have an awareness of the implications of the prosecution evidence;
  • Make a defence or answer to the charge/s (i.e. are they able to give the court a basic version of the facts as they claim them to be, if necessary through their solicitor, by entering the witness box and responding to questions in evidence-in-chief and cross-examination).

The forensic psychiatrist would also need to have regard to the criteria set out in the decisions of  Kesavarajah v The Queen [1994] HCA 41 and Presser [1958] VR 45. The psychiatrist may also include an opinion as to whether there may be particular defences available to the accused in relation to their mental illness, such as the insanity defence.

What is the insanity defence?

The insanity defence is determined according to the M’Naghten Rules. This famous 1843 case of M’Naghten involved the issue of insane automatism and the M’Naghten Rules are now known in many countries as the test for criminal insanity.

Under the M’Naghten rule, an accused is not guilty by reason of insanity if:

  • at the time of the alleged criminal act, the accused was labouring under such a defect of reason or disease of the mind that they did not know the nature or quality of their actions; or
  • if they knew the nature and quality of their actions, they were labouring under such a defect of reason or disease of the mind that they did not know that what they were doing was wrong.

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

Disclaimer: The information in this article is current as at the date of publication and is not intended to be a substitute for tailored legal advice. It is intended to be general information only and has been prepared without taking into account your unique circumstances.

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