Unfortunately, people suffering from mental health issues are getting into contact with the criminal justice system at an increasing rate.

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The Mental Health Cognitive Impairment Forensic Provisions Act 2020 in NSW provides a framework to divert people suffering mental health issues who’re facing criminal charges away from the criminal justice system. It also compliments the Mental Health Act. The purpose of it is to focus on rehabilitation and treatment, rather than punishment, resulting in the charges being dismissed completely if the criteria for such a diversion is satisfied.

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SECTION 32 Application | SECTION 14 Application

On 27 March 2021, new laws came into effect in New South Wales to deal with situations where persons suffering from mental health issues come into contact with the criminal justice system.

 

One of these new laws is section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, which replaces ‘section 32 applications’.

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Section 14 allows a person who is charged with a criminal or traffic offence and suffers from a mental health impairment or cognitive impairment to avoid a criminal record.

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A section 14 order may be unconditional, but more commonly comes with conditions such as as undertaking a mental health treatment or support plan.

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These plans often involve seeing a general practitioner and taking prescribed medication, regularly seeing a treating psychologist and engaging in therapy, such as cognitive behavioural therapy.

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The plans can last for up to 12 months.

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The important thing is that a successful section 14 application means there is no conviction and no finding of guilt.

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Section 14 Application

A ‘section 14 application’ is one made under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

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It is an application for the charges brought against you to be dismissed on the condition that you undertake a mental health treatment or support plan, which can last for up to 12 months.

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The section also allows the court to adjourn your case to another date in order to allow you to complete your treatment which, if successfully completed, will normally result in the case against you being dismissed.

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The Local Court can dismiss criminal charges and discharge a defendant into the care of a responsible person with or without conditions, under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).

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Alternatively, the Local Court can take any one of the following options:

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(1) Dismiss the charges and discharge a defendant unconditionally, or

(2) Dismiss the charges and discharge the defendant on the condition that he or she attend a person or place specified by the Magistrate for assessment, treatment or the provision of support for his or her mental health impairment or cognitive impairment, or

(3) the Magistrate also has the power to instead order that the proceedings be adjourned in order for the defendant to be assessed or diagnosed; for the development of a treatment or support plan; for a responsible person to be identified in order to be able to make an order; or for any other reason considered appropriate by the Magistrate in the circumstances, according to section 13.

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This application is commonly called the mental health or section 14 (formerly s32) application and only applies to local court proceedings involving summary offences or indictable offences dealt with in the local court, according to section 8.

 

What do you need to establish to get a Section 14?

Your section 14 application will succeed if you are able to persuade the court that:

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1. You have a mental health impairment or cognitive impairment, and

2. It is more appropriate to deal with you under the section than otherwise in accordance with the law.
    

What is a mental health impairment?

You have a ‘mental health impairment’ if:

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1. You have a temporary or ongoing disturbance of thought, mood, volition, perception or memory,

2. Your disturbance is significant for clinical diagnostic purposes, and

3. Your disturbance impairs your emotional wellbeing, judgment or behaviour.

Mental health impairment includes, but is not limited to:

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• Anxiety disorder,

• Affective disorder, including clinical depression and bipolar disorder,

• Psychotic disorder, and

• Substance induced mental disorder that is not temporary.

Mental health impairment does not include:

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• The temporary effect of ingesting a substance, or

• A substance use disorder.

 

What is a cognitive impairment?

You have a ‘cognitive impairment’ if:
 

1. You have an ongoing impairment in adaptive functioning;

2. Your impairment relates to comprehension, reason, judgment, learning or memory; and

3. Your impairment results from damage to, or dysfunction, developmental delay or deterioration of your brain or mind.
    

Cognitive impairment may arise from:
 

• Intellectual disability;

• Borderline intellectual functioning;

• Dementia;

• Acquired brain injury;

• Drug or alcohol related brain damage, including foetal alcohol spectrum disorder; or

• Autism spectrum disorder.
   

What does the court look at when deciding a section 14 application?

When deciding a section 14 application, the magistrate may consider:
 

• The nature of your mental health impairment or cognitive impairment,

• The nature, seriousness and circumstances of the alleged offence,

• Your suitability for the sentencing options available if you were found guilty of the offence,

• Any relevant change to your circumstances since the alleged offence

• Your criminal history,

• Whether you have previously received an order under the section or an equivalent section,

• Whether a treatment or support plan has been prepared in relation to you,

• Whether you are a danger to yourself, the complainant or a member of the public, and

• Any other relevant factors.

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What is a mental health treatment or support plan?

A section 14 application will often be supported by a report from a mental health professional which contains a mental health treatment or support plan.

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Our lawyers can direct you to a professional for the purpose of obtaining this report.

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Your mental health plan may contain a number of requirements, such as:
 

1. Seeing your general practitioner and take prescribed medication,

2. Consulting a treating psychologist on a regular basis, and/or

3. Engaging in therapy, such as cognitive behavioural therapy.

What orders can the Court make?

If your section 14 application is successful, the magistrate may order that your charges are dismissed and you are discharged:

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• Into the care of a responsible person conditionally or unconditionally,

• Conditionally upon attending on a person or at a place for treatment or support, or

• Unconditionally.

The order will normally come with a condition that you comply with a mental health treatment or support plan.

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A responsible person may be a health professional such as a treating psychologist, psychiatrist, counsellor or, in some cases, a general practitioner, parent or family member.

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A mental health treatment or support plan can last for up to 12 months.

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Can my case be adjourned to undertake treatment or support?

Yes. The magistrate to adjourn your case to enable:
 

• You to be assessed or diagnosed,

• Your mental health treatment or support plan to be developed, or

• A responsible person to be identified.

A magistrate may adjourn your case for any other reason he or she considers appropriate in the circumstances.

He or she can make interim orders when adjourning your case, which are orders that last until the next court date.

 

What happens if I breach my section 14 order?
 

It is important that you comply with your treatment plan because failure to comply can mean you are brought back before the court and dealt with in the normal way, which can expose you to the prospects of a criminal record and other penalties.

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Why Choose Invictus Legal for Your Mental Health Application

Invictus Legal's Criminal Lawyers are highly experienced in dealing with mental health applications. We work with a number of well qualified and highly regarded psychologists and psychiatrists to ensure that you receive the best report possible. Our proven track record will give you the confidence you need for achieving a positive outcome on your case. 

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We offer 24/7 services via our legal hotline, which can be contacted at 0410 600 230. Invictus Legal also provides free initial consultations for all criminal offence cases, providing you with an overview of your options and possible outcomes at the eraliest available opportunity. 

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If you have been charged with affray, don’t jeopardise your future and contact us today to achieve the best outcome.