What is a Mental Impairment or Disorder according to the Criminal Law?


Unsurprisingly this is a question that Criminal Lawyers get asked a lot. Simply put:  no you cannot just pretend to be mentally unfit to stand trial, and then recover once the charge(s) ‘go away’, and quite frankly, nor would you want to be declared mentally unfit to stand trial. 

If you are found mentally unfit a custody order can be made for your indefinite detention meaning you may be detained in prison until released by order of the Governor. Thus you may never be released. 

This indefinite detention for people who have not been found guilty of a crime is an issue that the Australian Law Reform Commission looked at in May 2014. 

We have outlined this area of Criminal Law below, however, nothing here should be taken as legal advice or a substitute for speaking to a lawyer from our office directly. If you have any questions you can reach one of us on 08 63238613.  

If Police are questioning you regarding you should obtain some legal advice regarding your rights prior. If it cannot wait until business hours you can call us 24/7 on +61 8 6323 8613.

What is a Mental Impairment or Disorder according to the Criminal Law? 

Having a Mental Impairment does not automatically give rise to the accused being ‘Unfit to Stand Trial’ under the Criminal Law. This is because Mental impairments cover a broad spectrum and they can anything from a minor mental impairment right through to severe mental impairments. 

Depending on the degree of mental impairment, an accused may be deemed to be mentally unfit to stand trial (the act of being tried in a court of law as an accused person). 

Timing is everything

It is important to note the distinction between a mental disorder which causes a mental impairment raised as an issue relevant to criminal responsibility for an alleged offence, and a mental condition leading to an impairment that affects an accused’s ability to stand trial. 

A mental disorder raised as an issue to the accused’s criminal responsibility is a question of the accused’s state of mental impairment at the time of the commission of the offence. This means that the accused was mentally impaired to such an extent at the time of committing the offence that they were unaware of right and wrong. That is a subject for another time.

The accused may be unfit to stand trial if once the accused is charged with an offence, they have a mental impairment regardless of if that impairment was present when the offence occurred. The mental impairment is only relevant at the time that the accused is charged and going through the Justice system. There are notable cases where a Court has postponed a trial so that accused can recover from medical operations sufficiently to take part in their defence. 

The mental condition affecting an accused’s ability to stand trial concerns the accused’s mental capacity to understand the legal process, give proper instructions, or present a competent defence. Several considerations must be taken into account when determining if an accused person is mentally unfit to stand trial.

When is an accused not mentally fit to stand trial?

Pursuant to section 8 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (‘CLMIA Act’) ‘mental impairment’ is defined as intellectual disability, mental illness, brain damage, or senility. 

Importantly an accused is presumed to be mentally fit to stand trial unless it is proved that they are unable to:

  • Understand the nature of the charge;
  • Understand the requirement to plead (guilty/not guilty) to the charge or the effect of that plea;
  • Understand the purpose of a trial;
  • Understand or exercise the right to challenge jurors;
  • Follow the course (proceedings) of the trial;
  • Understand the substantial effect of evidence presented by the prosecution in the trial; or
  • Properly defend the charge. 

The question of an accused’s mental fitness to stand trial may be raised at any time, and as many times, from before a charge is presented to the court right up until the conclusion of the trial. 

To determine the above considerations, a decision-maker, normally a judge may postpone the proceedings until the accused can be examined by a psychiatrist or an appropriate expert (i.e. psychologist) and an independent medical report is made. 

What happens to the Proceedings involving the mentally impaired accused?

If the court decides that an accused is presently not mentally fit to stand trial but may become mentally fit within 6 months, the court must postpone the proceedings for up to 6 months to redetermine the question of mental fitness again. This is often where people have a temporary mental impairment that the accused is expected to recover from, sometimes due to a medical operation, or severe sickness. 

Once the court decides that an accused is not mentally fit to stand trial at that time and will remain mentally unfit to stand trial for at least 6 months, the court must dismiss the charge without deciding the guilt of the accused. The court must then either release the accused, or make a custody order for the accused. 

This means that the Court may be making an order to indefinitely detain someone has not been found guilty of a crime. 

What is a custody order?

A custody order effectively detains the mentally impaired accused in any of the following places:

  • Authorised hospital (a public hospital or private hospital which licence is endorsed under the Hospitals and Health Services Act 1927);
  • A declared place (a place declared by the Governor to be a place for the detention of mentally impaired accused);
  • A detention centre; or
  • A prison,

until released by an order of the Governor which is effectively ‘indefinite’. Pursuant to s 24(1) CLMIA Act.

When must a custody order be made?

A custody order can be made only when the penalty for the alleged offence is or includes imprisonment and the court is satisfied that a custody order is appropriate after taking into account several considerations These consideration include evidence against the accused, circumstances of offending, accused’s personal circumstances, and public interest. 

In Western Australia v S U [2017] WADC 20, the court stated at [54]-[56] that apart from the risk of re-offending, “it is also in the public interest that people with mental illnesses are provided with the best possible treatment and care; and with the least restriction of their freedom and the least interference with their rights and dignity.” Therefore, the consideration of public interest may be said to be a paramount consideration when determining the type of custody order to be made. 

Prison or Hospital?

In relation to where the accused will be detained, a mentally impaired accused may only be detained in an authorised hospital if the Mentally Impaired Accused Review Board is satisfied with the following:

  • The accused has a mental illness requiring treatment;
  • Because of the mental illness, there is a significant risk to the health and safety or risk of serious harm to the accused or another person; 
  • The accused does not have the capacity to consent to treatment; and
  • The treatment can only be provided satisfactorily in an authorised hospital. 

This is pursuant to s 24(3) CLMIA Act.

Feel free to contact our office if you need any legal advice or have been questioned or charged with a crime or simple offence.

If you have been wrongfully accused then let a lawyer from Kean Legal Barristers & Solicitors can help you. Call our office to set an appointment today: +61 8 6323 8613

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