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Policy Bulletin 2019 / 4 (Civil Law Policy – Forensic Patients)

1 Mar 2019

The Legal Aid NSW Board has approved a new policy which covers applications to the Supreme Court to extend a person’s status as a forensic patient


The NSW Government amended the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Act) introducing provisions which enable the relevant Minister and/or Attorney General to apply to the Supreme Court to extend a person’s status as a forensic patient.


What does this mean?

Where a person has been charged with a serious indictable offence but is deemed to be unfit to be tried by reason of a disability, such as an intellectual disability or mental health illness, they will have a Special Hearing. Where the person is found to have committed the offence, they will be given a ‘limiting term’. A limiting term is equivalent to a sentence.

Under the amended provisions the Minister for Mental Health and/or the Attorney General can apply to the Supreme Court prior to the end of a forensic patient’s limiting term, seeking to extend the term for a period of up to 5 years. The Minister can also seek an extension of an existing extension order. This means the person can be either detained in a mental health facility or correctional centre for the duration of the detention or, released into the community subject to strict supervision orders even though they have completed their original ‘sentence’. 


What has changed?

There is now a specific policy covering these matters including for appeals. There is no means or merit test applied at first instance. The means and merit Tests apply to appeals. See Policy Online at 6.15.20 and 6.15.21 for details of the policy.

Commencement date

The change applies to applications for legal aid determined on or after 25 February 2019.


Contact for further information

Please contact the Client Eligibility Unit for any questions about the changes on aideen.mcgarrigle@legalaid.nsw.gov.au or 9219 5701.