In New South Wales, people charged with criminal offences who are suffering mental health issues are able to seek to have their matters diverted away from the criminal justice system, with it instead dealt with by them undertaking the mental health treatment they require.

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) provides a framework which enables this application, commonly known as the ‘section 14 application’.

This application was formerly a ‘section 32 application’ under section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), prior to amendments which commenced on 24 March 2021.

If granted, you will receive no conviction, penalty, or criminal record, and can also avoid any finding of guilt upon a charge.

This is due to how a Magistrate may grant this order (following an application) at any time during the proceedings, including before a plea is entered.

What section 14 orders can a court make?

The Magistrate may make an order to dismiss the charge and discharge the defendant:

1. Unconditionally, 
2. Into the care of a responsible person (unconditionally or subject to conditions), or 
3. On the condition that the defendant attends a specific person or place for assessment, treatment, or the provision of support for their mental health or cognitive impairment.

A ‘responsible person’ may be a health care professional such as a treating psychologist or psychiatrist. It can also be an agency (i.e., a rehabilitation clinic), as well as a counsellor, carer, or family member in some cases. 

The responsible person must be aware of the conditions and consent to the order. 

What do you need to establish?

The defence are required to establish that:

1. You have or had at the time of the alleged offending, a ‘mental health impairment’ or ‘cognitive impairment’, and
2. It is more appropriate to deal with the matter in this manner under section 14, than in accordance with the law (i.e., the criminal justice system). 

The relevant condition is required to be one which can be treated in a mental health facility, in an outpatient or inpatient basis. 

A mental health impairment may arise from a disorder such as anxiety disorder, psychotic disorder, effective disorder (i.e., clinical depression or bipolar disorder), and a substance induced disorder that is not temporary.

However, a defendant does not have a mental health impairment if it is caused solely by the temporary effect of ingesting a substance, or a substance-use disorder. 

A cognitive impairment may arise from conditions such as dementia, an intellectual disability, an acquired brain injury, drug or alcohol induced brain damage or autism spectrum disorder. 

An expert report from a psychologist or psychiatrist should be included in a section 14 application, with this required to state their opinion as well as address any necessary considerations.

It should also contain a treatment plan that outlines any treatments that a defendant should undertake to address their mental health or cognitive issues, which will assist the court in prescribing any orders. 

What will the court consider?

When considering whether it is more appropriate to dealt with a matter under section 14, the Magistrate will consider factors such as the:

• The nature of the relevant mental health impairment or cognitive impairment,

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

• The suitability of the sentencing options available if the defendant is found guilty of the offence,
• Any relevant changes in the circumstances of the defendant since the alleged commission of the offence,

• The defendant’s criminal history, 
• Whether a treatment or support plan has been prepared in relation to the defendant and its content,
• Whether the defendant is likely to endanger the safety of the defendant, a victim of the defendant or any other member of the public, 
• Whether the defendant has previously been the subject of an order under section 14 or section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), and
• Any other relevant factors. 

The more serious the alleged offence is, the more consideration that will be given to the public interest, and the protection of the community. 

Essentially, the weighing exercise provides that where the imposition of a section 14 will create a suitable outcome for the defendant and community alike, it should be ordered for the defendant. 

How long does it last?

A section 14 order and any prescribed treatment plan can last up to 12 months from the date the order is made. If you fail to comply with a treatment plan, the court can order you to re-appear before it, where the matter will be dealt with as if it has not already been under section 14. 

Committing a further offence will not breach a section 14 order, a breach results from a failure to comply with conditions imposed related to mental health or disability service treatments. 

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