- The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) is expected to commence on 29 March 2021.
- This article provides an overview of the diversionary provisions that will apply to matters being dealt with summarily in the Local and Children’s Court.
- The new provisions are broadly similar to sections 32 and 33 of the current Mental Health (Forensic Provisions) Act.
The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the ‘new Act‘) received assent on 23 June 2020 and is expected to be proclaimed to commence on 29 March 2021.
The new Act will replace the current Mental Health (Forensic Provisions) Act (‘MHFPA‘). Like the current Act, it will cover diversionary procedures in Local and Children’s Courts as well as procedures applicable to superior courts (fitness, mental health/cognitive impairment defence, forensic patients). The new Act implements some (but by no means all) of the recommendations made by the NSW Law Reform Commission in its reports on ‘People with cognitive and mental health impairments in the criminal justice system’ in 2012 and 2013.
This article will provide an overview of the new diversionary provisions applying to matters being dealt with summarily. These are set out in Part 2 of the Act and, apart from new section numbers, are mostly very similar to the old provisions. As the changes made by the new Act are minor, much of the existing common law around ss 32 and 33 will continue to apply.
Overview of the new diversionary provisions
Part 3 of the MHFPA (which contains ss 32 and 33) will be replaced by Part 2 of the new Act. The new provisions will apply to proceedings commenced on or after the commencement date of the Act; the MHFPA will continue to apply to proceedings already on foot (see the new Act, Sch2, Pt 2, cl 8).