Criminal offences and mental health

Managing mental illness can be complex—remember you’re not alone.

You can get treatment to support your mental health and wellbeing.

If you are charged with a criminal offence while you have a diagnosed mental illness, you may have to go to a special court—such as the Mental Health Court or the Mental Health Review Tribunal.

Call for help in an emergency

  • Call 000 if you are at immediate risk of harming yourself or others—or someone you know is.
  • Call 13 11 14 for Lifeline’s Crisis Counselling Line.
  • Call 1300 224 636 for Beyondblue.

When to get legal advice

Get legal advice if you are:

  • charged with a criminal offence while diagnosed with a mental illness— including if you are going to the Mental Health Court or want to be referred to the Mental Health Court
  • preparing to appear at the Mental Health Review Tribunal. 

How to get legal advice

Mental illness

A person has a mental illness if they have been clinically diagnosed with an illness that significantly disturbs their thought, mood, perception (sensory information) or memory.

Being charged with an offence

If a person with a mental illness is charged with a criminal offence, they may have to go to the Mental Health Court.

The Mental Health Court is a special hearing of the Supreme Court for criminal cases where the accused person may have a psychiatric or intellectual disability. This court can decide if the accused person:

  • was of unsound mind when the offence was committed
  • is temporarily unfit for trial
    or
  • is permanently unfit for trial.

If the person was of unsound mind when the offence was committed, or is permanently unfit for trial, the Mental Health Court may make:

  • a forensic order giving authority for a person to be detained in an authorised mental health service for treatment or care
    or
  • a treatment support order—involving less oversight than a forensic order, or
  • no order.

If the person is temporarily unfit for trial, the Mental Health Court must make either a forensic order or a treatment support order.

If the Mental Health Court decides to make a forensic order or a treatment support order, the court must also decide whether the person will be an inpatient or receive treatment while in the community.

A forensic order can only be revoked by the Mental Health Review Tribunal or the Mental Health Court if they are hearing an appeal against a Mental Health Review Tribunal decision.

How to get legal advice

We may be able to represent you if you are appearing in the:

  • Mental Health Court
  • Mental Health Review Tribunal for matters including:
    • electroconvulsive therapy (ECT) applications
    • hearings involving minors
    • hearings of a person’s fitness for trial
    • when the Attorney-General is represented.

We may give legal advice:

  • if you’ve been charged with an offence while diagnosed with a mental illness.
  • on appeals from matters in the Mental Health Review Tribunal to the Mental Health Court.

We don’t give advice about general mental health matters but other mental health support services are available.

Contact us

Other places to get legal advice:

Who else can help?

Disclaimer: This content is for general purposes only and not legal advice. If you have a legal problem, please contact us or speak to a lawyer. View our full disclaimer.

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