What’s New With Section 32?

The way the NSW court system deals with those found to have mental health or cognitive impairment issues has changed. The reforms aim to keep the community safe and take the victim’s needs into account while dealing with the mental health of the offender.

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 came into effect on March 29, 2021, and replaces the Mental Health (Forensic Provisions) Act 1990 (NSW).

Under the reforms, section 32 mental health orders no longer apply, and the special verdict of “not guilty by reason of mental illness” has been changed.

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 to a defence of mental health impairment or cognitive impairment with a new statutory test stating that a 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” due to mental health impairment or cognitive impairment is now required.

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.

No more Section 32

Under section 32, magistrates could deal with defendants with certain types of mental health conditions allowing them to undertake treatment and avoid criminal conviction and penalty.

These orders only applied to those accused of summary offences or with indictable offences that could be dealt with in the NSW Local Court.

For section 32 applications to succeed, the court needed to be persuaded it was in the best interest of the defendant to be dealt with via a treatment or support plan.

And if within a six-month period, the subject failed to comply with the conditions of an order, the magistrate could then call the person in question back to the court to be dealt with as if their charges had never been set aside in the first place.

Updated diversion orders

Under the new Act, mental health orders will be made under section 14.

These orders allow for a defendant with mental health or a cognitive impairment to be released into the responsibility of another person or on the proviso that they undertake a treatment or support program or without any conditions.

Making such an order does not constitute any finding relating to a charge whatsoever.

The procedure remains much the same as section 32, except for three significant changes.

1. Impairment definitions

Mental health impairment is now defined as a temporary or ongoing disturbance of thought, mood, volition, perception, or memory. It must be regarded as significant for clinical diagnostic purposes and has to affect emotional wellbeing, judgment or behaviour.

A mental health impairment may arise due to a number of disorders – anxiety, affective, psychotic or a substance induced disorder that is not temporary – and it may also arise due to other reasons. It cannot be due to a state of intoxication or substance use disorder.

Cognitive impairment is now defined as ongoing impairment in adaptive functioning and “an ongoing impairment in comprehension, reason, judgment, learning or memory”.

Cognitive impairment must “result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from a condition”.

And cognitive impairments can be a result of intellectual disability, borderline intellectual functioning, dementia, an acquired brain injury, a drug or alcohol related brain damage, including foetal alcohol spectrum disorder, autism spectrum disorder, or from some other reason.

2. Statutory list of considerations

The new Act provides a statutory list of considerations a magistrate may refer to when making a decision 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.

3. Call backs

Magistrates are now able to call discharged defendants back into court to face their original charges if they have not been following their treatment or support program for up to 12 months from the order being issued. Under the old section 32 scheme, a magistrate could only call the subject of an order back into court for a period of up to six months.

In summary

The Upside

The changes now make it much clearer to understand what is relevant and required for a solicitor to bring an application before the court. This will result in applications not only being taken more seriously from the onset by the courts, but also increases the applications prospects of success.

The Downside

The changes now hold an applicant accountable for a longer period, essentially extending the period can call the matter back for resentence.

They could also restrict an application from even being heard by a court due to it on the surface not satisfying the eligibility requirements spelt out.

Overall, it could mean that an Applicant who would be greatly benefit from receiving treatment will instead have their matter proceed through the criminal system with the possibility of a criminal convection being recorded against them, and dealing with the ongoing ramifications that may flow from that.