Psychiatric Defences Psychiatric Defences in Criminal Lawin Criminal Law

Dr Richard FurstDr Richard Furst

Consultant Forensic Psychiatrist Consultant Forensic Psychiatrist

Level 8 Practice, Sydney Level 8 Practice, Sydney

2323rdrd February 2014 February 2014

Common referralsCommon referrals

Section 32Section 32 Pre-sentence reportsPre-sentence reports FitnessFitness Mental Illness DefenceMental Illness Defence Substantial Impairment by Abnormality of Substantial Impairment by Abnormality of

MindMind Self-defenceSelf-defence ProvocationProvocation AutomatismAutomatism

Section 32 & 33Section 32 & 33

Section 32 of MH(FP)A, 1990 requires Section 32 of MH(FP)A, 1990 requires mental illness mental illness or ‘or ‘mental conditionmental condition’ for ’ for which treatment is available in a which treatment is available in a mental health facility mental health facility

Treatment plan Treatment plan that can be enforced that can be enforced by the Courtby the Court

Section 33 allows for diversion from Section 33 allows for diversion from criminal justice system to psychiatric criminal justice system to psychiatric inpatient unitsinpatient units

Need to be a ‘Need to be a ‘mentally ill personmentally ill person’ as ’ as per Section 14 of the Mental Health per Section 14 of the Mental Health Act 2007 and Section 16 of MHA 1990Act 2007 and Section 16 of MHA 1990

Mentally Ill PersonMentally Ill Person

Mental illness means a condition that seriously Mental illness means a condition that seriously impairs, either temporarily or permanently, the impairs, either temporarily or permanently, the mental functioning of a person and is mental functioning of a person and is characterised by the presence in the person of characterised by the presence in the person of any one or more of the following symptoms:any one or more of the following symptoms:

a)a) DelusionsDelusionsb)b) HallucinationsHallucinationsc)c) Serious disorder of thought formSerious disorder of thought formd)d) A severe disturbance of moodA severe disturbance of moode)e) Sustained or repeated irrational behaviour Sustained or repeated irrational behaviour

indicating the presence of any one or more of indicating the presence of any one or more of the symptoms referred to in paragraphs (a) to the symptoms referred to in paragraphs (a) to (d)(d)

Mentally Ill PersonMentally Ill Person

A person is a mentally ill person if they are A person is a mentally ill person if they are suffering from a mental illness and there are suffering from a mental illness and there are reasonable grounds for believing that care, reasonable grounds for believing that care, treatment and control of the person is treatment and control of the person is necessary:necessary:

a)a) For the person’s own protection from serious For the person’s own protection from serious harm, orharm, or

b)b) For the protection of others from serious harmFor the protection of others from serious harm

In considering whether a person is a mentally In considering whether a person is a mentally ill person, the continuing condition of the ill person, the continuing condition of the person, including any likely deterioration of the person, including any likely deterioration of the person’s condition and the likely effects of such person’s condition and the likely effects of such deterioration, are to be taken into accountdeterioration, are to be taken into account

Section 32Section 32

Common referralsCommon referrals

- Schizophrenia- Schizophrenia

- Bipolar Disorder- Bipolar Disorder

- Major Depression- Major Depression

- Intellectual Disability- Intellectual Disability

- Dementia- Dementia

- Anxiety Disorders- Anxiety Disorders

- Personality Disorders- Personality Disorders

- Alcohol and other drugs- Alcohol and other drugs

Pre-sentence ReportsPre-sentence Reports

Majority of District Court matters Majority of District Court matters plead guiltyplead guilty

Psychiatric illness/condition relevant in Psychiatric illness/condition relevant in mitigationmitigation

Referral information:Referral information:– Letter of instructionLetter of instruction– Agreed FactsAgreed Facts– Criminal history – Bail ReportCriminal history – Bail Report– Medical RecordsMedical Records

Fitness IssuesFitness Issues

At common law, a person is unfit to At common law, a person is unfit to stand trial for criminal offences if stand trial for criminal offences if he or she is:he or she is:1. Incapable of understanding the 1. Incapable of understanding the nature or purpose of the nature or purpose of the proceedingsproceedings2. Incapable of communicating with 2. Incapable of communicating with the Court or counsel for the the Court or counsel for the purposes of conducting the defencepurposes of conducting the defence