Australia: Section 32 Mental Health Applications: A report from a psychiatrist is not necessary

Joseph Perdicaro was charged with two criminal offences on 6 April 2018. The first was stalking or intimidation with intent to cause physical or mental harm under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). This offence carries a maximum penalty of five years imprisonment and/or a fine $5,500.

The second was common assault, under section 61 of the Crimes Act 1900 (NSW), which comes with up to 2 years in prison.

The offences arose from an alleged domestic violence incident.

After a prison conference at Silverwater's Metropolitan Reception and Remand Centre, the defendant's criminal defence lawyer advised Mr Perdicaro undergo a psychological assessment, with a view to making an application for his charges to be dismissed due to mental health.

Psychologist Bradley Jones subsequently diagnosed Perdicaro with PTSD, ADHD and major depressive disorder. However, Magistrate Dr Roger Brown found on 4 May 2018 that Jones' report could not ground a successful mental health application under section 32 of the Mental Health (Forensic Provisions) Act 1990 as the practitioner was not a psychiatrist.

At a later date back in Blacktown Local Court, the Mr Perdicaro's defence lawyer pointed out to the magistrate that a psychologist's report had been successfully used for such applications in the past, citing 2017's the DPP versus Saunders.

And on 4 July last year, Magistrate Karen Robinson dismissed the charges against Perdicaro under the provisions of section 32.

Mental health diversions

A section 32 mental health order provides that a defendant who has a mental health condition can be discharged without a criminal conviction or a finding of guilt on the proviso that they follow a treatment plan of up to six months.

The section applies to defendants who suffer from a cognitive impairment, a mental illness or a mental condition for which treatment is available in a mental health facility. The section doesn't apply to "mentally ill persons".

A mentally ill person is defined by section 14 of the Mental Health Act 2007 (NSW) as someone in need of "care, treatment or control" to prevent them from causing serious harm to themselves or others.

For a section 32 application to succeed, the court must be persuaded that it's more appropriate for the defendant to be dealt with by way of a treatment plan than otherwise in accordance with law. These applications must be supported by the evidence of a mental health professional, usually in the form of a report, which diagnoses the defendant and contains material upon which a court may be persuaded that it is in both the defendant's interest and the interests of the community for the diversion to occur.

Upon invoking the section, a magistrate can dismiss the charges and release a defendant unconditionally or into the care of a responsible person, or order that they attend a specified treatment program.

Usually, the treatment plan will contain provisions such as the defendant must attend upon a treating mental health professional intermittently – such as every week or fortnight – must undertake therapy such as cognitive behavioural therapy, and must take medication as prescribed by their general practitioner.

Declaratory relief

Following the release of the defendant, psychologist Mr Jones, in conjunction with Mr Perdicaro, sought declaratory relief from the NSW Supreme Court, regarding the validity of a section 32 application being based on the report of a psychologist, and not a psychiatrist.

As the High Court of Australia set out in 1992's Ainsworth versus the Criminal Justice Commission, declaratory relief is when a court makes a determination on a legal controversy. This must be a determination made on an actual situation, not some "abstract or hypothetical questions".

Mr Jones was seeking judicial declarations regarding whether he was qualified to diagnose a person for the purpose of a section 32 application, along with whether his qualifications make it permissible for him to determine treatment, prepare a treatment plan and choose a treatment provider.

The psychologist was seeking these declarations because after the initial decision by Magistrate Brown not to accept his report, other lawyers had been unwilling to retain him to provide further section 32 related reports.

Mr Jones also wanted clarification on whether a psychiatrist is required for a section 32 application to be valid. And Mr Perdicaro was asking for a declaration on him being "denied procedural fairness", when Mr Jones' assessment was disregarded by the first magistrate, Dr Brown.

Declaration denied

"In my view, what is sought in these proceedings is an advisory opinion without reference to concrete facts," NSW Supreme Court Justice Peter Johnson said in his final findings on 21 August this year.

His Honour further explained that the declarations sought related to past events, and what's more, the Blacktown Local Court actually accepted Mr Perdicaro's section 32 application based on the report of Mr Jones, so there was "no live controversy".

The presiding justice reasoned that despite Mr Jones' claims that he'd suffered financial loss over the ruling of a single magistrate, it did not give rise to a "real interest" to raise declaratory relief over what was in essence a "theoretical question".

In regard to Perdicaro's assertion that he was denied procedural fairness, his Honour found there was no "practical injustice", as, if anything, what he'd suffered was a delay in justice being served.

Problem solved

"The effect of what the court will say in this judgment may constitute an indication along the lines sought," Justice Johnson continued. He went on to set out the conditions under which a section 32 order can be made.

According to his Honour, a court should consider the "qualifications and expertise" of a practitioner when assessing whether a report and its contents should be accepted as evidence to support a section 32 application.

"A magistrate would fall into error if a blanket approach was adopted so that reports of psychiatrists only could be received", the Supreme Court justice asserted. He added that when a report is found appropriate, it should be in relation to actual proceedings.

His Honour further explained that the difference between psychologists and psychiatrists is that the latter are medical practitioners that can prescribe medication. And he emphasised "that psychologists play a significant part in the provision of reports" for section 32 applications.

For these reasons, Justice Johnson ruled that Magistrate Brown had indeed made an error by disregarding Mr Jones' report based on the fact that he wasn't a psychiatrist. On 21 August this year, the summons seeking the declaratory relief was formally dismissed, despite achieving its objective.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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