There are times when a defendant’s lawyer, the police/Crown or the court are concerned that a defendant may suffer from a mental impairment which could compromise their ability to effectively take part in the proceedings. In that case, the court may direct that enquiries be made to determine whether the defendant is mentally fit to stand trial.

The Criminal Procedure (Mentally Impaired Persons) Act 2003 (“CP (MIP) Act”) provides the procedure for determining whether a defendant is unfit to stand trial. It does the same for determining whether a defendant should be found not guilty by reason of insanity on the basis of an “agreed verdict”. It also provides a process by which an outcome can be reached in cases where a defendant is found unfit to stand trial or not guilty by reason of insanity. This is called disposition.

Frequently, the process is not straightforward. It is sometimes difficult to ascertain whether a defendant is suffering from a mental impairment or whether they are affected by drugs, or simply angry or unhappy with their predicament.

However, if the fitness procedure is triggered the defendant must undergo the entire process, which includes a fitness hearing. If they are found unfit, there is an involvement hearing and a disposition hearing. This can take some considerable time.

For the fitness hearing two comprehensive psychiatric or psychologist reports are required. The report writers provide their opinion on whether a defendant is mentally impaired and if so, whether they are unfit to stand trial.

After reviewing these reports and possibly hearing from the report writers (particularly if the report writers do not agree) the judge decides whether the defendant is fit or unfit to stand trial.

If the defendant is found fit, he or she is required to enter a plea, and the charges proceed in the usual manner to trial or sentencing.

If the defendant is found unfit to stand trial he or she will be remanded to an involvement hearing to determine whether he or she has committed the offence as charged.

Frequently, the process is not straightforward. It is sometimes difficult to ascertain whether a defendant is suffering from a mental impairment or whether they are affected by drugs, or simply angry or unhappy with their predicament.

Evidence may be contested and challenged by the defendant at that hearing. It is usually conducted in a similar way to a judge alone trial, the main difference being that the standard of proof is balance of probabilities rather than beyond reasonable doubt.

It is an important hearing because it may be the defendant’s only opportunity to test the prosecution evidence.

If the charge is proven, the defendant is remanded to a disposition hearing. Usually a report is directed to be prepared by a psychiatrist or psychologist. This is to provide recommendations on the appropriate disposition of the defendant after assessing particular risk factors and personal circumstances.

Disposition is frequently a difficult decision because there are few options available to the judge under the CP(MIP) Act.

If the judge considers the defendant poses a risk of committing a serious harm offence, the judge may make a special patient or special care recipient order, so that the defendant is detained so as to receive intensive treatment and rehabilitation in a secure environment.

If the judge considers the defendant does not pose a serious risk an order under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 may be made, or alternatively the defendant can be released.