Before 27 March 2021, persons suffering from mental health conditions who were accused of NSW criminal offences could apply for an order referring them to a diversionary program, rather than subjecting them to a penalty under the general criminal law.
These application were made under section 32 of the Mental Health (Forensic Provisions) Act 1990 (MHFR); and were commonly known as ' section 32 applications'.
The new local court regime for dealing with mental health
However, a new mental health law regime commenced operation in NSW on 27 March 2021.
The legislation facilitating the new regime is the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act).
Objectives of the new regime
The new laws were introduced in consultation with legal and health professionals, and informed by two reports by the NSW Law Reform Commission and a review of the Mental Health Review Tribunal.
The stated objectives of the regime are to:
- Protect victims and the community,
- Ensure that people with mental health impairment or cognitive impairment who commit crimes receive the treatment, support and supervision they need to get well and prevent reoffending, and
- Provide clear language, structure and processes, to enable efficient and effective responses to people with mental health and cognitive impairment.
Leading case law: the two limbs of a mental health application
Several cases sought to set out what was required to succeed in a section 32 application.
In the leading case of DPP v El Mawas  NSWCCA 154, Judge McColl made clear that two limbs needed to be satisfied before an application could succeed.
The Judge stated as follows:
 When one turns to s 32 it can be seen it requires the Magistrate to make at least three The frst is to determine, in accordance with s 32(1)(a), whether the defendant is eligible to be dealt with under that section.
 The Magistrate must next determine whether, having regard to the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant (including presumably any information the Magistrate has garnered under s 36), "it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with the law".
 Once the Magistrate has determined that it is more appropriate to deal with the defendant in accordance with s 32, the Magistrate must determine which of the actions set out in subs (2) or (3) [of section 32] should be taken.
The two limbs of the application were contained in section 32 of the the MHFP Act.
New legislation codifies the limbs
These limbs are now embodied in sections 12(1) and 12(2) of the new Act, which provides as follows:
Section 12. Defendants with mental health impairments or cognitive impairments
(1) A Magistrate may make an order under this Division or adjourn proceedings if it appears to the Magistrate that the defendant has (or had at the time of the alleged commission of the offence to which the proceedings relate) a mental health impairment or a cognitive impairment, or both.
(2) The Magistrate may take action under this Division only if it appears to the Magistrate, on an outline of the facts alleged in the proceedings or other evidence the Magistrate considers relevant, it would be more appropriate to deal with the defendant in accordance with this Division than otherwise in accordance with law.
The first limb
The new Act introduces the terms 'mental health impairment' and 'cognitive impairment', which are defined in sections 4 and 5 of the Act respectively.
A 'mental health impairment' is a streamlining term covering the overlapping and confusing terminology previously applicable for section 32 applications, while a 'cognitive impairment' extends the section's applicability to a number of other developmental and degenerative disorders.
Section 4. Mental health impairment
1. For the purposes of this Act, a person has 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.
2. A mental health impairment may arise from any of the following disorders but may also arise for other reasons:
(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
3. A person does not have a mental health impairment for the purposes of this Act if the person's impairment is caused solely by:
(a) the temporary effect of ingesting a substance, or
(b) a substance use disorder.
Section 5. Cognitive impairment
1. For the purposes of this Act, a person has 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.
2. A cognitive impairment may arise from any of the following conditions but may also arise for other reasons—
(a) intellectual disability,
(b) borderline intellectual functioning,
(d) an acquired brain injury,
(e) drug or alcohol related brain damage, including foetal alcohol spectrum disorder,
(f) autism spectrum disorder.
The second limb
As with a section 32 application, the Magistrate must make a determination as to whether it is appropriate to take an action under section 14.
The new legislation explicitly outlines a non- exhaustive list of considerations in section 15:
Section 15. Considerations of Magistrate when making order
In deciding whether it would be more appropriate to deal with a defendant in accordance with this Division, the Magistrate may consider the following—
(a) the nature of the defendant's apparent mental health impairment or cognitive impairment,
(b) the nature, seriousness and circumstances of the alleged offence,
(c) the suitability of the sentencing options available if the defendant is found guilty of the offence,
(d) relevant changes in the circumstances of the defendant since the alleged commission of the offence,
(e) the defendant's criminal history,
(f) 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,
(g) whether a treatment or support plan has been prepared in relation to the defendant and the content of that plan,
(h) whether the defendant is likely to endanger the safety of the defendant, a victim of the defendant or any other member of the public,
(i) other relevant factors.
Codification and expansion of common law
The above codifies and expands the common law to encompass new considerations, suggested by professionals and the Law Reform Commission, as well as reflecting common practice and approaches from within the courtroom.
These criteria are of assistance to applicants as they provide a solid foundation on which to make submissions, as well as providing clarity to for the decision making process without limiting discretion of Magistrates.
Of particular note is subsection 15(c), which is rather ambiguously worded: "the suitability of the sentencing options available if the defendant is found guilty of the offence".
This might be a reiteration of the court's Second Limb consideration under subsection 12(2) that
"... it would be more appropriate to deal with the defendant in accordance with this Division than otherwise in accordance with law".
However, it could be read as a review whether a sentence can be imposed to the same effect, or more suitable, than orders under section 14 of the Act.
A key distinction to bear in mind is that the treatment condition of a conditional release order or community correction order only puts an obligation on the defendant, rather than an obligation to report put on a responsible person under the Act (and the MHFP Act).
Further, and most importantly for certain licences and checks, such as security licences, the complete dismissal of the charge may further promote rehabilitation and recovery rather than losing the licence and consequently employment.
The decision of a magistrate to divert "cannot be exercised properly without due regard being paid to the seriousness of the offending conduct for which the defendant is before the court."
Clearly, the more serious the offending, the more important will be the public interest in punishment being imposed for the protection of the community and the less likely will it be appropriate to deal with the defendant in accordance with the provisions of the Act" (Confos, Howie J at ).
The seriousness must be determined on the facts alleged in these proceedings by the Police, as outlined in section 12(2) of the Act.
However, the legislation expressly allows other evidence as relevant, which an applicant should bear in mind as often the Police Facts sheets are based completely on the complainant's account, leaving out details important to the defence case.
Previous case law has largely focused on the task of balancing:
"the public interest in those charged with a criminal offence facing the full weight of the law against the public interest in treating, or regulating to the greatest extent practical, the conduct of individuals suffering from any of the mental conditions referred to in s 32(1)... with the object of ensuring that the community is protected from the conduct of such persons" (DPP v El Mawas  NSWCCA 154, McColl JA at ).
Howie J in Confos v DPP  NSWSC 1159 at  emphasised that, "what is being balanced is two public interests, to some extent pulling in two different directions. It is not a matter of weighing the public interest in punishment as against the private interest of the defendant in rehabilitation."
The new legislation re-centres subjective factors as important ones for consideration, in addition to the balancing of the two public interests.
Of course, the applicant's subjective circumstances have always been very relevant when contemplating the appropriateness of mental health diversion.
The magistrate's decision, whether stated or not, is a judgment as to the foreseeable efficacy in rehabilitating alleged offenders with the diversion, on the accepted understanding that communities are better protected by properly rehabilitated individuals (see R v Groombridge (unrep, 30/9/90, NSWCCA) – and R v Pullen  NSWCCA 264) ).
A tailored treatment plan has always been very persuasive in this regard.
It could be understood that this tension is somewhat relieved by the new legislation, reduced to just two considerations within the non-exhaustive list, tipping the discretion of the court in favour of the application.
Orders that can be made
The final orders, previously under section 32(3), are now contained in section 14 of the Act, which provides as follows:
Section 14. Orders Magistrate may make
1. A Magistrate may make an order to dismiss a charge and discharge the defendant:
(a) into the care of a responsible person, unconditionally or subject to conditions, or
(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment, treatment or the provision of support for the defendant's mental health impairment or cognitive impairment, or
2. An order to dismiss a charge against a defendant does not constitute a finding that the charge against the defendant is proven or otherwise.
Section 13 of the Act also empowers the magistrate to adjourn proceedings, similar to section 32(2)(a) of the MHFP Act, but the new section 13 lays out a number of discreet reasons for adjournment.
In El Mawas at , McColl JA noted:
"... adopting the diversionary route does not mean that a defendant is not exposed to punishment. While an order under s 32(3) is not custodial in the strict sense, it may involve the imposition of conditions restricting a discharged defendant's freedom of movement and actions. Compliance with those conditions is ensured by the Magistrate retaining a supervisory jurisdiction for 6 months after a s 32(3) order is made: s 32(3A)-(3D)".
A positive step forward
The new regime neatly consolidates the law surrounding section 32 applications and clearly lays it out in a logical fashion for defendants, representatives and decision makers alike to follow, while also allowing for the many permutations of experience mental health impairments and cognitive health impairments can present.
It may be seen that this legislation provides an avenue for the courts to be more sympathetic and constructive when dealing with matters
Seeking a mental health order?
If you are a defendant in the local court suffering from mental health issues, call Sydney Criminal Lawyers 24/7 to arrange a free consultation with a defence lawyer who is vastly experienced in preparing and presenting mental health applications in court.
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.