Same but different? Assessing reforms to mental incapacity in criminal law

ABSTRACT In a field typically marked by stasis over long periods of time, in recent years, there have been significant changes in NSW regarding the way in which criminal law deals with mental incapacity. Taken together, these reforms represent a move away from reliance on the common law toward legislation that is posited as modernising and streamlining this part of criminal law. With a focus on Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), this article offers an assessment of the reforms relating to criminal responsibility. I argue that, while some of the reforms are positive, some represent missed opportunities, and some may even have negative consequences. In particular, the enhanced role for victims of crime that underscores several reforms may not achieve the outcomes desired by defendants/patients, victims or others. Overall, the changes encode a fundamental recasting of mental incapacity in criminal law. Stepping away from the specifics of the Act, this article also offers some brief reflections on this recasting. In particular, I suggest that change in this area is hooked on a dilemma, around similarity and difference and the place of the forensic system within criminal justice more broadly.