Last Tuesday the Magistrates’ Court Amendment (Mental Health List) Bill 2009 was introduced into the Victorian Parliament.

The Bill proposes to amend the Magistrates’ Court Act 1989 and set up a Mental Health List within the Magistrates’ Court of Victoria as a three-year pilot project. Approximately three hundred candidates will undergo rehabilitation and treatment under the supervision of the Court instead of entering a plea.

Section 4T would read,

4T Eligibility criteria

(1) To be eligible for a criminal proceeding to enter the Mental Health List, an accused must meet—

(a) the diagnostic criteria; and

(b) the functional criteria; and

(c) the needs criteria.

(2) The diagnostic criteria are that the accused has one or more of the following—

(a) a mental illness;

(b) an intellectual disability;

(c) an acquired brain injury;

(d) autism spectrum disorder;

(e) a neurological impairment, including, but not limited to dementia.

(3) The functional criteria are that the accused has one or more of the diagnostic criteria which causes a substantially reduced capacity in at least one of the following areas—

(a) self-care;

(b) self-management;

(c) social interaction;

(d) communication.

(4) The needs criteria are that the accused would derive benefit from receiving coordinated services in accordance with an individual support plan that may include one or more of the following—

(a) psychological assessment;

(b) welfare services;

(c) health services;

(d) mental health services;

(e) disability services;

(f) drug treatment services or alcohol treatment services;

(g) housing and support services;

(h) other services that aim to reduce the risk of offending or re-offending.

If it is satisfied that they have successfully completed the treatment it has directed the court has the discretion to discharge the accused without making a finding of guilt against them. The process can be described as a kind of hybrid between the existing court processes of deferral and diversion.

There’s a catch, of course. Whilst participation in the program is not considered an admission of guilt, s 4X(2) would provide that,

(2) Despite subsection (1), a proceeding in the Mental Health List must be transferred out of the List to a contested hearing in the Court if at any stage the accused—

(a) pleads not guilty; or

(b) indicates an intention to plead not guilty.

So an accused who wishes to assert their innocence, including putting forward a claim of mental impairment, would not be eligible to participate.

An accused person who is charged with an offence classified as a sexual or serious violent offence by the Sentencing Act 1991 would also not be considered. Other than this, and the restrictions at 4T, the legislation seems designed to make admission as flexible as possible.