WA's Mental Impairment Laws: The Gap Between Intent and Reality
WA's New Mental Impairment Laws Are Failing the People They Were Designed to Protect
Western Australia's legal system has long grappled with how to fairly and humanely manage accused persons whose mental impairment brings their fitness to stand trial into question. The Criminal Law (Mental Impairment) Act 2023 (WA) — which came into effect in late 2024 — was heralded as a landmark reform, replacing the outdated Mentally Impaired Accused Act 1996 with a framework better suited to contemporary understandings of mental health, criminal responsibility, and rehabilitation.
Yet, as 2026 Supreme Court cases have starkly illustrated, the gap between legislative intent and operational reality remains wide — and dangerously so. Individuals found not criminally responsible due to mental impairment are still being held in prisons rather than secure medical facilities. Legal experts and judges have publicly described the new Act as effectively 'impossible' to implement, not because of flaws in the law itself, but because the infrastructure required to give it life simply does not exist.
For lawyers, clinical psychologists, and those involved in medico-legal work across Western Australia, this disconnect has profound practical implications.
What the Criminal Law (Mental Impairment) Act 2023 Was Designed to Do
The Criminal Law (Mental Impairment) Act 2023 introduced a more nuanced legal framework for managing accused persons who, due to a mental impairment, are either:
- Unfit to stand trial — unable to meaningfully participate in their own defence, instruct counsel, or follow proceedings; or
- Not criminally responsible — who committed the alleged act but lacked the requisite mental capacity to be held criminally liable.
Under the Act, individuals in either category are not to be treated as convicted criminals. The law's intent is rehabilitative: to place these individuals in secure health settings where they can receive treatment, with their ongoing detention subject to regular review by the Mental Impairment Review Tribunal (MIRT).
This represented a significant philosophical shift from the 1996 Act, aligning WA more closely with best-practice approaches seen in other Australian jurisdictions and reflecting updated guidance from bodies such as the Australian Psychological Society and AHPRA-registered forensic practitioners.
The Infrastructure Gap: Where the System Is Breaking Down
The promise of the legislation has collided with an uncomfortable reality: Western Australia does not have enough secure forensic mental health beds to house the individuals the law is designed to protect.
As a result, people found not criminally responsible — people who, by legal definition, should not be in the prison system — are being held in correctional facilities. This is not merely a procedural inconvenience. It actively undermines the therapeutic intent of the Act and raises serious questions about:
- Human rights compliance, given that detention in a prison environment for a non-convicted person is fundamentally incongruent with rehabilitative goals;
- Clinical outcomes, as prison environments are ill-equipped to deliver the intensive forensic mental health treatment these individuals require;
- Legal integrity, with Supreme Court judges themselves raising concerns about the system's ability to operationalise the legislation as written.
The state government has acknowledged the shortfall and announced plans for 32 sub-acute male forensic beds — but as of mid-2026, no firm construction timeline has been confirmed. In the interim, the gap persists.
What This Means for Psychological Reports for Court in Western Australia
For legal practitioners instructing forensic psychologists, and for psychologists preparing psychological reports for court, this legislative landscape has important implications.
Fitness to stand trial assessments and mental impairment reports now carry even greater weight. The forensic psychologist's role is not simply to diagnose — it is to provide the court with a clinically rigorous, legally informed opinion that addresses the specific criteria under the Criminal Law (Mental Impairment) Act 2023. This includes:
- Assessment of the accused's capacity to understand the nature of the charge and proceedings;
- Evaluation of their ability to instruct counsel and follow evidence;
- Opinion on the presence and nature of any mental impairment relevant to criminal responsibility;
- Recommendations regarding treatment needs and appropriate placement.
Given that the court's subsequent orders may result in indefinite detention — in either a secure health facility or, currently, a prison — the quality and rigour of the underlying psychological assessment is critical. Medico-legal psychological reports in this context must meet the highest evidentiary standards, comply with the Expert Witness Code of Conduct (Schedule 1, Supreme Court (General) Rules 2005 (WA)), and be prepared by appropriately credentialled, AHPRA-registered psychologists with forensic expertise.
The Broader Medico-Legal Picture: Intersections With Compensation and Civil Claims
The mental impairment framework does not operate in isolation. For many individuals cycling through the criminal justice system with significant mental health conditions, there are often parallel or subsequent civil and compensation matters to consider, including:
- Criminal Injuries Compensation (CIC) reports in WA — where a person has been the victim of a criminal act and suffered psychological injury, a formal psychological assessment is required to support a CIC application under the Criminal Injuries Compensation Act 2003 (WA);
- Personal injuries psychological reports in Perth — relevant where mental health conditions have developed or been exacerbated in the context of trauma, including trauma associated with the justice system itself;
- Workers compensation assessments — where workplace trauma has contributed to a mental health condition that intersects with legal proceedings.
In each of these contexts, criminal injuries compensation reports WA and personal injuries psychological reports Perth must be prepared with the same rigour and independence expected of forensic court reports. Psychologists operating in this space must be mindful of their dual obligations: to the referring party and, ultimately, to the court or tribunal.
What Good Forensic Psychology Practice Looks Like in This Environment
Against a backdrop of legislative reform, infrastructure shortfalls, and increasing judicial scrutiny, forensic psychologists in Western Australia must:
- Stay current with developments under the Criminal Law (Mental Impairment) Act 2023 and associated case law;
- Ensure their assessments are thorough, evidence-based, and clearly address the relevant legal criteria — not merely clinical ones;
- Communicate complex psychological concepts in language accessible to non-clinician readers, including judges, magistrates, and legal representatives;
- Remain independent and objective, even where instructed by one party.
For legal practitioners, this underscores the importance of instructing forensic psychologists who are not only registered with AHPRA but who have demonstrable experience in the medico-legal context and an understanding of the specific legislative frameworks operative in Western Australia.
Conclusion: Reform Without Resources Is Rhetoric
The Criminal Law (Mental Impairment) Act 2023 represents genuine progress in how Western Australia conceptualises the intersection of mental health and criminal justice. But law reform without the infrastructure to support it risks becoming little more than well-intentioned rhetoric.
Until secure forensic mental health beds are available at the scale required, the people the Act was designed to protect will continue to fall through the cracks — housed in facilities entirely unsuited to their needs, their rehabilitation deferred indefinitely.
For those working in this space — whether as legal practitioners, treating clinicians, or medico-legal experts — the obligation is to continue advocating for rigorous, rights-respecting practice, even when the system falls short.
Speak With an Experienced Forensic Psychologist in Western Australia
Cygnet Medico-Legal Psychologists are AHPRA-registered forensic psychologists providing expert psychological reports across Perth and Western Australia, including fitness to stand trial assessments, criminal injuries compensation reports, personal injuries psychological reports, and pre-sentencing reports for court.
If you are a legal practitioner, insurer, or individual requiring a medico-legal psychological assessment, we welcome your enquiry.
Fremantle: (08) 9467 6373 Midland: (08) 9467 7676
Cygnet Medico-Legal Psychologists — Expert forensic psychology reports for courts, tribunals, and compensation matters across Western Australia.