Fitness for Trial (FFT)

If a person has been charged with certain offences, they may be referred to the Mental Health Court. The Court can decide that the person is “unfit for trial.” This means that the person is not well enough to go through court proceedings in the criminal justice system. There are certain criteria that must be met for a person to be considered unfit for trial.

The Court can find a person permanently unfit for trial or temporarily unfit for trial.

If the person is permanently unfit for trial, the Court may make a forensic order (FO) or a treatment support order (TSO). The Mental Health Review Tribunal (Tribunal) will then review this order on a regular basis.

If the person is temporarily unfit for trial, the Court must make an FO or TSO. The Tribunal will then review that order and the person’s fitness for trial on a regular basis.

When will a person's FFT be reviewed?

A person's FFT will be reviewed:

• for the first year after the Court hearing, a person's FFT will be reviewed approximately every 3 months.
• after the first year (if still required), the person's FFT will be reviewed approximately every 6 months
• on application by certain persons
• on the Tribunal's initiative.

The Tribunal is an independent decision-making body whose job is review the involuntary status of persons with a mental illness and/or intellectual disability.

This includes the review of a person's FFT.

What decisions can the Tribunal make?

The Tribunal may decide:

• the person is FFT
• the person is unfit for trial.

If the Tribunal decides the person is fit for trial, then the FO or TSO will end and the person will go back to the criminal court. The Tribunal can make this decision at any hearing.

On the last three-monthly hearing, which is usually about 12 months after the Mental Health Court hearing, the Tribunal must decide whether the person is likely to be fit for trial within a reasonable time. After this decision, the Director of Public Prosecutions (DPP) must decide whether to discontinue proceedings in the criminal court.

This means that the DPP decides whether the case goes ahead in criminal court or not.

If the DPP decides to discontinue proceedings, the FO or TSO will continue to be reviewed by the Tribunal, but there will be no more reviews of FFT. If the DPP decides to not discontinue proceedings, then the Tribunal will continue to review the FO or TSO and FFT.

The Tribunal will continue to review FFT:

• until the DPP discontinues the proceedings; or
• for 7 years (from the date the Mental Health Court made their decision) if the criminal proceedings mean the person could face life imprisonment; or
• for 3 years (from the date of the Mental Health Court made their decision) for other proceedings.