Section 14 – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

What is a section 14 application?

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ('the Act') grants the Court with a broad discretion to divert a person charged with a criminal offence away from the criminal justice system and the usual forms of punishment into the care of a responsible person for treatment of their mental health or cognitive impairment.

The purpose of such an order is to ensure that offenders are directed towards treatment facilities to manage their conditions and reduce their likelihood of reoffending.

An application pursuant to s 14 of the Act only apply to summary offences, or to indictable offences tried summarily in the Local Court. You cannot make a s 14 application for matters tried in the District Court.

A Two limb test – Are you eligible and is it more appropriate?

Before a Magistrate makes an order under s 14 of the Act, the Magistrate must be satisfied that:

1. The defendant has (or had at the time of the alleged offence) a mental health impairment or a cognitive impairment, and
2. Whether, on an outline of the facts and any other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with s 14, than otherwise under criminal law.

1. What is a mental health impairment?

A person has a mental health impairment if:

• The person has a temporary or ongoing disturbance of thought, mood, volition, perception, or memory; and
• The disturbance would be regarded as significant for clinical diagnostic purposes; and
• The disturbance impairs the emotional wellbeing, judgment, or behaviour of the person.

A mental health impairment may arise from any of the following disorders, but it can also arise for other reasons:

• 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.

You are not considered to have a mental health impairment for the purposes of the Act if your impairment is caused solely by the temporary effect of ingesting a substance or a substance use disorder.

2. What is a cognitive impairment?

A person has a cognitive impairment if:

• The person has an ongoing impairment in adaptive functioning, and
• The person has an ongoing impairment in 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.

A cognitive impairment may arise from:

• Intellectual disability,
• Borderline intellectual functioning,
• Dementia,
• An acquired brain injury,
• Drug or alcohol related damage, including foetal alcohol spectrum disorder, or
• Autism spectrum disorder.

3. How do I establish that I suffer from a mental health impairment or a cognitive impairment?

The Magistrate will rely upon a report from a forensic psychologist or a forensic psychiatrist, or your treating clinical psychologist or psychiatrist, to confirm your diagnosis.

This is frequently called a mental health treatment plan or support plan.

It is a comprehensive report detailing the nature and history of your condition, any treatment you have previously received in respect of your condition, and a treatment plan for the future.

4. Is it more appropriate to divert?

The second limb requires the Magistrate to make a discretionary judgment as to the appropriateness of diverting the defendant, rather than dealing with the matter under the criminal law.

When assessing the appropriateness of diverting the defendant into the care of a mental health practitioner, rather than dealing with the manner under the criminal law, the Magistrate is required to undertake a balancing exercise to ensure that the interests of the defendant to be provided with adequate treatment and support for their mental health condition do not outweigh the general need to administer justice for the defendant's criminal conduct.

Section 15 of the Act provides the Magistrate with a non-exhaustive list of matters to take into consideration when assessing the appropriateness of diversion. These include:

1. The nature of the defendant's apparent mental health impairment or cognitive impairment,
2. The nature, seriousness, and circumstances of the alleged offence,
3. The suitability of the sentencing options available if the defendant is found guilty of the offence,
4. Relevant changes in the circumstances of the defendant since the alleged commission of the offence,
5. The defendant's criminal history,
6. Whether the defendant has previously been the subject of an order under this Act or section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW),
7. Whether a treatment or support plan has been prepared in relation to the defendant and the content of that plan,
8. Whether the defendant is likely to endanger the safety of defendant, a victim of the defendant, or any other member of the public, and
9. Other relevant factors.

The Magistrate is not restricted by these factors and may consider other relevant factors pursuant to s 15(i). This may include, for example, an assessment of the degree to which a defendant was disabled from being able to control their conduct due to their mental health or cognitive condition.

What orders can the Magistrate make?

If the first two limbs are satisfied, a Magistrate may make any of the following orders:

• Discharge the defendant unconditionally,
• Discharge the defendant on a condition that they attend a place or on a person for assessment, treatment, or support, or
• Discharge the defendant into the care of a responsible person, unconditionally, or subject to conditions.

The effect of a successful application under s 14 of Act is that a person charged with a criminal offence will be discharged, the charge dismissed, and no conviction recorded against them.

Who can make a section 14 application?

Any person who has been charged with a criminal offence which is being dealt with in the Local Court, and who has a mental health impairment or a cognitive impairment, may make an application under section 14 of the Act.

This application may be made at any stage in the proceedings, regardless of whether the person is pleading guilty or not guilty.

How long will the order be in place?

If you are successful with a s 14 order, an order will be imposed for a period of 12 months.

What is a Mental Health Treatment Plan or Support Plan?

A mental health treatment plan or support plan is a treatment proposal that accompanies a section 14 application. The plan must be from a mental health professional such as a psychologist or psychiatrist.

It can include requirements such as:

• Take prescription medication,
• Attend sessions with a treating psychologist or psychiatrist,
• Engage in therapy, such as cognitive behavioural therapy, or
• Complying with all reasonable directions of medical practitioners.

Who can be a responsible person?

A responsible person must be a medical professional such as a psychologist, psychiatrist, counsellor or, in some cases, a general practitioner.

Can I adjourn my case to undertake treatment?

Yes. A Magistrate can adjourn your case to enable:

• You to be assessed or diagnosed,
• Your mental health treatment or support plan to be developed, or
• A responsible person to be identified.

What are the benefits of a section 14 application?

Of course, the most advantageous benefit is that a person avoids a criminal conviction in favour of a court mandated treatment plan.

An application can be made at any time in the proceedings. It can be made early in the proceedings and, if successful, result in the case being dismissed without needing to wait a length period of time for a hearing.

Even if the application is unsuccessful, it will not affect the case as a whole. Whether a person maintains a plea of not guilty or enters a plea of guilty, the court still has the power to make the order.

What happens if I breach a section 14 order?

If you fail to adhere to the conditions ordered against you, or if a Magistrate suspects that you have failed to comply with an order under s 14 within the twelve-month period, a Magistrate may:

• Order that you appear before the Magistrate,
• Issue a warrant for your arrest, or
• Deal with the criminal charge under the criminal law.

In practice, this means that you may be resentenced for the offence under the criminal legislation. You may later be convicted of the offence or be the subject of more serious penalties, such as full-time imprisonment.