The law in NSW recognises that mental health or cognitive impairment can impinge on a person’s ability to reason or understand the nature of their actions.

If you fall into this category and have committed a crime, you may escape criminal liability and be diverted away from the criminal justice system into a treatment or care plan or be given a special verdict by a jury of “act proven but not criminally responsible” due to mental health or cognitive impairment.

Several NSW forensic mental health laws have recently changed under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (Mental Health and Cognitive Impairment Forensic Provisions Act 2020 No 12 - NSW Legislation)

The reforms aim to keep the community safe and consider the victim’s needs while dealing with the offender's mental health.

The new Act clarifies key principles, including:

  • Diversion
  • Fitness for trial; and
  • The insanity defence.

What is a Diversion order?

One of the most widely used mental health defences, Section 32, which diverted offenders away from the courts, replaced Part 2, Division 2 (sections 12-17) of the new Act.

Under Section 14 of the new Act, a defendant with mental health or cognitive impairment can be released into the responsibility of another person, on the proviso they undertake a treatment or support program or without any conditions. It applies to those accused of summary offences or indictable offences that can be dealt with in the NSW Local and Children’s courts.

How do I get a diversion order under Section 14?

A Section 14 application is usually made by the lawyer representing you in court. The granting of a Section 14 order is at the magistrate’s discretion, and many factors can be considered. A magistrate may also suggest that consideration should be given to Section 14 during the proceedings at any point in time.

Punishment versus treatment

In deciding to apply for a Section 14 order, the Magistrate needs to balance the community's safety with the offender's best interest. Magistrates will not usually grant a diversion order unless they are satisfied the defendant will receive the appropriate treatment necessary and will not re-offend. An application usually includes a detailed care plan from a psychologist or psychiatrist as a fundamental part of the documents to be put before the Court.

Preparation is everything

If you consider a section 14 application, you need to give your solicitor sufficient notice of your intentions. A mental health professional needs to prepare a report that outlines your mental health conditions and develop an appropriate treatment plan to satisfy the Court.

Many diversion applications fail because the report and treatment plan prepared by the health professional is seen to be deficient by the Court. The Magistrate has an overall discretion when considering a Section 14 application and will reject the application outright if they believe that there is insufficient information before the Court on a diagnostic basis to support the proposed treatment plan.

Who can apply for Section 14 diversion order?

Anyone who has mental health or cognitive impairment.

For the purposes of the Act, a mental health impairment is:

  • A temporary or ongoing disturbance of thought, mood, volition, perception or memory is significant for clinical diagnostic purposes, and that impairs the person's emotional well-being, judgment or behaviour.
  • May arise from an anxiety disorder, an affective disorder, including clinical depression and bipolar disorder, a psychotic disorder, or a substance-induced mental disorder that is not temporary.
  • A person does not have a mental health impairment for the purposes of this Act if the person’s impairment is caused solely by the temporary effect of ingesting a substance or a substance use disorder.

For the purposes of the Act, a cognitive impairment is:

  • an ongoing impairment in adaptive functioning, comprehension, reason, judgment, learning or memory, and the impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from an intellectual disability, borderline intellectual functioning, dementia, an acquired brain injury, drug or alcohol-related brain damage, including foetal alcohol spectrum disorder, autism spectrum disorder.

What does the magistrate take into account when applying for a diversion order?

The new Act provides a statutory list of considerations a magistrate may refer to when deciding whether to apply a diversion.

They include the nature of a defendant’s impairment, the seriousness and circumstances of the offence, the suitability of sentencing options if found guilty, changes to the defendant’s situation since the alleged offending and their criminal record, previous mental health order, whether a treatment plan has been prepared and the content of it, and whether the defendant is a danger to themselves, a victim or anyone else.

What happens if I don’t follow my treatment plan?

Magistrates can call discharged defendants back into court to face their original charges if they aren’t following their treatment or support program for up to 12 months from the order being issued.

What is fitness for trial?

New NSW forensic mental health laws create a statutory test which states a person will be unfit to be tried if because the person has a mental health impairment or a cognitive impairment, they cannot:

  • Understand the offence;
  • Plead to the charge;
  • Understand generally the nature of the proceedings as an inquiry as to whether the person committed the offence;
  • Make a defence or answer to the charge.

This enables a court to decide whether a person is fit to be tried and likely to become fit to be tried within 12 months.

Those who are unlikely to become fit to be tried will go through a special hearing process if the Department of Public Prosecutions wishes to continue the case against them.

What is the Insanity Defence?

Under the previous Mental Health (Forensic Provisions) Act 1990,  if a person was suffering from a mental illness and was not responsible for their actions, the jury found them not guilty by reason of mental illness.

The reforms modify this provision with a new statutory test stating the person who had a mental health impairment or a cognitive impairment, or both, at the time of carrying out an offence will not be criminally responsible if the impairment had the effect that the person did not know the nature and quality of the act; or that it was wrong because the person could not reason with a moderate degree of sense and composure about whether the act was wrong.

A special verdict by a jury of “act proven but not criminally responsible” is required due to mental health impairment or cognitive impairment.

The previous verdict “not guilty by reason of mental illness” created trauma and pain for victims and their families as it implied that the defendant did not commit the act.

The reforms also allow a special verdict to be entered by a court at any time in the proceedings if the defendant and the prosecutor agree.

What happens if a mentally ill or mentally disordered person commits a crime?

If an offender is deemed to be mentally ill or disordered, a magistrate may make one or more of the following orders:

  • the defendant be taken to, and detained in, a mental health facility for assessment,
  • the defendant be taken to, and detained in, a mental health facility for assessment and that, if the defendant is found on assessment at the mental health facility not to be a mentally ill person or mentally disordered person, the defendant be brought back before a Magistrate or an authorised justice as soon as practicable unless granted bail by a police officer at that facility,
  • for the discharge of the defendant, unconditionally or subject to conditions, into the care of a responsible person.

We are here to help

If you have been charged with a criminal offence and believe you have mental health or cognitive impairment or are mentally ill or disordered, it is essential to have your case assessed by an experienced lawyer.

Fourtree Lawyers have extensive experience representing clients with mental health issues. We will ensure you are assessed by a psychologist or psychiatrist experienced in writing Section 32 mental health reports and effective treatment and care plans.

Contact our Central Coast Lawyers on 1300 529 444 as soon as possible for a free initial consultation and assessment of your case.

Section 32 Defence



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