Overhaul of WA’s Mental Impairment Act

This year the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) was reformed by the Criminal Law (Mental Impairment) Act 2023 (WA), bringing WA in line with other State legislation.

The new 2023 Act applies to accused persons who are unfit to stand trial (section 3(3)) or who are acquitted on account of mental impairment (section 3(4)). Whilst the 2023 Act applies to such accused persons, the Act’s paramount consideration is the protection of the community (section 8).

Some key changes under the 2023 Act:

  • Updated language and definition of “mental impairment” – previously referred to as the defence of “insanity” or “unsoundness of mind” under section 27 of the Criminal Code (WA);
  • An extension of time, allowing up to 12 months for an accused to be assessed and potentially become fit to stand trial (in exceptional circumstances);
  • Allowance of support measures (such as a support person) that may allow an accused to be deemed fit to stand trial;
  • The introduction of Special Proceedings for an accused who is unfit to stand trial (mandatory for indictable offences) where the evidence is tested and the accused may be found not guilty by way of mental impairment, guilty or guilty of a statutory alternative offence;
  • Allows the Court to unconditionally release an unfit accused and make a Custody Order or impose a Community Supervision Order (of up to 5 years);
  • Custody Orders must impose a Limiting Term which cannot exceed the maximum penalty of the offence (except for offences of murder or manslaughter); however
  • The Supreme Court may order an extension of a Custody or Community Supervision Order if satisfied that it is necessary for the protection of the community.

Mental Impairment Review Tribunal:

The new Act establishes the Mental Impairment Review Tribunal which is responsible for treatment and release of those subject to Custody Orders. The Tribunal has the power to release those on Custody Orders without the approval of the Attorney-General.

At Kate King Legal our team of experienced criminal lawyers can assist you with your criminal charges where mental impairment is a factor. For urgent advice and assistance call us now on (08) 9467 3333 or click here to fill out an online enquiry.