When there are questions about the mental health of a person charged with a less serious ('summary') offence, a magistrate in the Local Court can make orders for their treatment and care instead of dealing with them in the ordinary way under criminal law.

The magistrate will need persuasive evidence to do this, and will first consider very carefully the interests of both the accused and the public. 

If the accused appears to have a mental health impairment or cognitive impairment – or to have had one when the offence was committed – the magistrate has the option of dismissing the charges and releasing the accused without a hearing, either:

• into the care of a responsible person, with or without conditions attached; or
• on the condition that they are assessed for treatment and support; or
• without any conditions attached.

The accused can be brought back before the court if they breach the conditions of their release within the next twelve months.

If the accused appears to be a mentally ill or a mentally disordered person (as defined in the Mental Health Act 2007), the orders the magistrate can make include: 

• detention for assessment in a mental health facility. This can result in the accused becoming an involuntary patient, or in being brought back to court to face the charges if they are assessed as not mentally ill; or
• release into the care of a responsible person, with or without conditions attached.

If after six months the accused continues to need treatment, or has been released and is complying with all the conditions attached, the charge is taken to have been dismissed.

It can be upsetting for victims of crime when the accused is not convicted or penalised in the ordinary way. It is important to remember that a court’s decision to place a person into the care of health professionals does not mean it does not recognise the harm their crime caused. Rather it reflects one of the competing aims of the justice system to promote rehabilitation through ensuring those with mental illness/impairment or cognitive impairment are diverted to receive appropriate treatment.