Psychologist and Psychiatrist fee guidelines

1. Reports for applications under s. 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Funding for s 14 application reports by psychologists, neuropsychologists and psychiatrists will only be approved when:

• there is a reasonable prospect of success of the application, as assessed by the requesting practitioner
• the practitioner certifies that a report from a local diversion program (e.g. Justice Health or Justice Advocacy Service) is either not available or not sufficient, and
• the practitioner has attempted to obtain sufficient material (e.g. Community Treatment Orders, existing reports) from treating community mental health service/team where applicable.

2. Reports for sentencing

Funding for sentencing reports by psychologists, neuropsychologists and psychiatrists will only be approved when Legal Aid NSW is satisfied that the proposed report or attendance is likely to materially affect the outcome of the sentencing hearing taking into account at least the following factors:

• The current procedural stage of the matter
• Whether there is a real possibility of a term of imprisonment being imposed for the matter
• Whether the client’s mental state contributed to the commission of the offence in a material way
• Whether the offender was not fully aware of the consequences of their actions because any mental health or cognitive impairment
• The client’s mental health and intellectual disability status
• The seriousness of the offence/s
• The relevance of ongoing risk assessment
• Whether or not the offence carries a standard non-parole period
• The criminal history of the client, and
• The availability of appropriate alternative ways to introduce subjective evidence.

And additionally for requests for reports and attendance in Local Court matters and appeals in the District Court:

• Whether the matter is a Table 1 offence under Schedule 1 of the Criminal Procedure Act 1986 (NSW)
• Whether the matter is being prosecuted by the DPP
• Whether Legal Aid NSW has already funded a s 14 report
• Whether there are exceptional circumstances when considered against other legally aided clients in summary sentencing matters, and
• Whether the practitioner has attempted to obtain sufficient material (e.g. Community Treatment Orders, existing reports) from treating community mental health service/team where applicable.

3. Evidentiary Reports 

Evidentiary Reports are reports from an expert to establish an evidentiary basis for a defence (e.g not criminally responsible for an offence on the basis of mental health impairment or a cognitive impairment, substantial impairment) or an evidentiary issue (e.g. fitness to plead or stand trial or leave application).

Before funding for an evidentiary report will be approved there must be explicit factual material confirming a reasonable expectation of a relevant condition.

5. Travel expenses

Payment for travel will only be paid where a Sydney-based expert is travelling to a client assessment located outside the Sydney metropolitan area. Travel will be paid on the same basis as for a legal practitioner in a state criminal law matter. See travel rates and travel guidelines.

7. Approval for requests for funding above the fee scale

Legal Aid NSW may approve requests for funding above the fee scale in exceptional circumstances. When determining whether there are exceptional circumstances, Legal Aid NSW may consider:

• whether the assessment and report are required on an urgent basis, provided the urgency is not due to a delay in seeking funding
  
• whether there is a large volume of relevant material
• whether the person being assessed requires the use of an interpreter
• the objective seriousness of the offence/s
• the circumstances of the person being assessed, the extent of their mental health impairment, cognitive impairment and/or physical impairment,
• whether the report requires multiple assessment sessions by the expert, and
• whether the expert has been advised that the client is in receipt of a grant of aid and fee payable under the Fee Scale.

Exceptional circumstances must be considered in the context of other legally aided clients in similar matters.

NOTE: The decision to approve funding for expert reports above the fee scale can be exercised by Legal Aid NSW officers authorised under Clause 37 of the Delegation Instrument.