Criminal & Disciplinary

Blog: Mental health and the criminal justice system

TGB Lawyer Lucy Wood explains the relationship between people suffering mental illness and the criminal justice system.

mental health and the criminal justice system

As a nation, Australia has come a long way in understanding mental  illness – a battle endured by one in five people every year.


Thankfully, the stigma that once surrounded mental illness is giving way to understanding due to the efforts of organisations such as BeyondBlue and Headspace. Even social media has jumped on board with #itsokaytotalk and #RUOKDAY going viral.


Unfortunately, the relationship between the mental health and criminal justice systems is less well understood. There are many misconceptions, especially where an accused person charged with a serious offence suffers from a mental illness and is found not guilty due to mental incompetence. The general misconception is that the person is not being held accountable for their actions.


To be guilty of a criminal offence it must be established beyond reasonable doubt that an accused person not only committed the physical act of the offence, but that they also intended to do it. The key here is intent. That is, the criminal law in most, but not all cases, understands that we should only be held to account for the things we intend to do. So, just as someone is not criminally responsible for an accident, an accused person will be found not guilty if it can be proved they were suffering a mental impairment so serious and severe that they:

  1. Did not know the nature and quality of their conduct;
  2. Did not know the conduct was wrong; or
  3. Were unable to control their conduct.


A finding of not guilty on the grounds of mental incompetence is a very high bar to meet. The court gives careful scrutiny to the state of mind of the accused at the time of the offence and will seek the assistance of significant and detailed expert evidence, given by a number (usually three) of highly-qualified psychiatrists.


There is often a misconception that when an accused person is found not guilty on the grounds of mental incompetence they walk free from court. Far from it. Rather, while the person is not criminally responsible for what they have done, an obligation is imposed on the courts to declare the person liable to supervision.


It is important to understand that the role of the criminal justice system when presented with an accused person with a mental impairment is not to act punitively, but rather focus on assisting that person with the appropriate treatment and rehabilitation with the goal being to reduce the risk of reoffending.


A supervision order can either commit a person to detention in secure psychiatric care or alternatively release the person on strict conditions. The court must fix a term of supervision equivalent to the term of imprisonment that would have been appropriate if the person were found guilty of the offence.

Further, the order is required to be reviewed each year and the court retains a discretion to vary or revoke the order at any time upon application of the individual subject to the order, the Crown, the Parole Board, the Public Advocate or any person with a proper interest.


People with severe mental illness can – through no fault of their own –be a risk to themselves and others, and is something the court must appropriately address. However, the law has a duty to both the person concerned and to the community to assist in rehabilitation.

If you are struggling with mental health please call Lifeline (13 11 44), BeyondBlue (1300 22 4636) or SANE Australia (1800 18 7263).