Call for a Section 14 mental health lawyer now – Criminal Lawyers Sydney and Suburbs – (02) 9533 2269

People who suffer from a mental illness or a cognitive impairment (or both) who are charged with offences that are heard in the Local Court may have their cases dealt with under mental health legislation instead of according to law by making a Section 14 application under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). This principle has been available for many years, but the legal landscape has recently changed in this regard (in March 2021).

 

Section 14  now governs applications to the Court that a person charged with an offence be dealt with under mental health provisions instead of according to law. The current Act came into effect on 27 March 2021, and applies to people charged with offences from that date. It replaces the prior Section 32 of the Mental Health (Forensic Provisions) Act 1990 (which remains applicable for existing offences prior to that date).

A person is defined to have a mental health impairment if:

(a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and

(b) the disturbance would be regarded as significant for clinical diagnostic purposes, and

(c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.

The following diagnosed conditions are included (although other conditions or reasons for the impairment are not excluded):

(a) an anxiety disorder,

(b) an affective disorder, including clinical depression and bipolar disorder,

(c) a psychotic disorder,

(d) a substance induced mental disorder that is not temporary.

A person is defined to have a cognitive impairment if:

(a) the person has an ongoing impairment in adaptive functioning, and

(b) the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and

(c) the impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from a condition set out in subsection (2) or for other reasons.

The following specific conditions are included (although other conditions or reasons for the impairment are not excluded):

(a) intellectual disability,

(b) borderline intellectual functioning,

(c) dementia,

(d) an acquired brain injury,

(e) drug or alcohol related brain damage, including foetal alcohol spectrum disorder,

(f) autism spectrum disorder.

If a defendant satisfies the criteria for either a mental health impairment or a cognitive impairment, then the Magistrate may make an Order (pursuant to section 14) only if the Magistrate is satisfied that it would be more appropriate to deal with the defendant pursuant to mental health provisions than otherwise in accordance with law (section 12). As with the previous regime, the Magistrate retains a very wide discretion in this regard.

The current Act does give some guidance (in section 15) as to a list of factors which the Magistrate may consider when coming to a determination. The list is partially a restatement of the common law, and is not an exclusive list.

The Act extends the period in which the defendant must comply with any treatment plan or support plan, to 12 months (s.16), whereas under the previous legislation the period was 6 months. This was enacted to address what was possibly a growing tendency of Magistrates to decline to grant Section 32 Orders under the prior legislation on the basis that supervision under a 6 month treatment plan was inadequate. Non compliance with a treatment plan or support plan during the currency of the Order may result in a defendant being ordered to appear before the Magistrate, and the Court has the power to issue a warrant for the defendant’s arrest if the defendant’s whereabouts is unknown or if the defendant fails to so appear.

The current provisions should see a greater number of people charged with offences who suffer from mental health or cognitive issues, being discharged into treatment regimes as opposed to being put on criminal Orders, if only because of the longer period of supervision now available to the Courts. Whether the current legislation will have this desired effect remains to be seen.

Our lead criminal lawyer, Brigitte Simeonides, has specific expertise in this area, not only in Court, but she has also spoken / lectured a number of different groups of psychiatrists, psychologists, general practitioners, and other health practitioners, in relation to obtaining mental health outcomes for people who have mental health (or cognitive) diagnoses.