Criminal Law

By Jane Carey


Are mental health and drug addictions an excuse for criminal offending?


I recently attended a mental health forum along with people working in the mental health sector, people suffering from mental health issues, and carers. A number of people asked me, “what do the Courts do with people with mental health issues accused of crimes?” or “do they use the ‘Ben Cousins’ excuse?”.

From my own experience, and if you talk to anyone who works in the criminal justice system, they will tell you a very large percentage of accused persons suffer from either mental health issues or drug and alcohol abuse. Most of the time the two are so intertwined in a chicken-and-the-egg relationship it is hard to deal with one without the other.

It’s not surprising that with the media coverage of Ben Cousins, and any prominent football player in trouble for that fact, the general population start to think that if you have a drug addiction and/or mental health issues, you can excuse criminal behaviour.

So how do the Courts deal with people suffering from mental health issues? Are they excused for their criminal offending? Mental health may not protect you from gaol, but it is a serious concern of the courts.

Mental health and criminal law in the ACT

In the ACT, mental health issues are dealt with by the Courts in four main ways. Avoiding all the legal jargon and summarising some very complex legal tests*, the four ways are:

  • Someone may be diagnosed with a mental impairment (according to psychological diagnostic criteria), noting that a mental impairment can include mental health issues such as depression. If that person’s mental impairment has contributed to their offending in such a way that they couldn’t control their actions, or they couldn’t foresee the consequences, then the defence of mental impairment can be argued.
  • Alternatively, before the defence of mental impairment is argued at hearing, for some offences the Magistrates Court can refer the matter to the ACT Civil and Administrative Tribunal (“ACAT”). ACAT can then work out the best way to deal with the person, usually placing them on a Mental Health Order. This allows for persons with mental impairments to be appropriately removed from the criminal justice system.
  • The most common way mental health issues are dealt with by the Courts is in sentencing. It will not necessarily excuse an offender’s behaviour but can help explain and it is also highly relevant to how a Court sentences someone. For example, will a person’s mental impairment mean gaol will impact on them more harshly than an ordinary person? Were the mental health issues a contributing factor to the offending and have they rehabilitated through counselling or other programs?
  • Mental impairment is also important to the question of fitness to plead. Fitness to plead looks at whether someone understands what they’ve been charged with, understands the allegations, can respond to the allegations and instruct their lawyer. This is a high bar to overcome and only raised when persons suffer from significant mental impairments.

So the short answer is, no: Mental health and/or drug and alcohol abuse are not always an excuse for criminal conduct. But they play a big factor in the criminal justice system and Courts and lawyers are constantly trying to find a balance on how to appropriately deal with it.

*This should not be taken as a statement of the law in it’s entirety