Section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act NSW (2020) allows a defendant with a cognitive or mental health impairment to be released into the responsibility of another person on the condition that they undertake a support program, or treatment.
This treatment or support plan must facilitate a party to improve their mental health conditions, or mental illness. Importantly, this Section 14 Mental Health Act replaces the older “Section 32” order that diverted offenders away from the courts on the basis of mental health defences.
What Constitutes Mental Health and Cognitive Impairment?
Mental Health Impairment
A person has a mental health impairment if they have a clinically significant, temporary or ongoing disturbance of thought, mood or perception. This disturbance impairs the person’s well-being, behaviour or judgement.
Given below are certain examples of what mental health impairment includes:
- a psychotic disorder,
- an anxiety disorder,
- an affective disorder such as clinical depression or bipolar disorder, or
- substance-induced mental disorder (not temporary)
On the other hand, a cognitive impairment includes if:
- impairment is related to reason, judgement, comprehension, learning or memory, and
- impairment has resulted from damage to, or dysfunction, developmental delay or deterioration of mind or brain
- there is an ongoing impairment in adaptive functioning
This impairment could be a result of acquired brain injury, intellectual disability, foetal alcohol spectrum disorder, borderline intellectual functioning etc.
Section 14 Mental Health Act and Diversion Orders NSW
Diversion Orders in NSW are a legal mechanism for diverting individuals with mental health issues away from the criminal justice system and into the mental health system for assessment and treatment.
These orders aim to address the underlying mental health problems that may have contributed to a person’s involvement in criminal behaviour, rather than punishing them through the traditional criminal justice process.
Here’s an overview of Mental Health Diversion Orders in NSW:
- Purpose: The primary purpose of Diversion Orders is to ensure that individuals with mental health issues receive appropriate assessment, treatment, and support, with the goal of reducing the likelihood of reoffending and improving their mental and emotional wellbeing.
- Eligibility: Eligibility criteria for Mental Health Diversion Orders may include factors such as the nature and severity of the offence, the individual’s mental health condition, and their willingness to engage in treatment. These criteria can vary depending on legislative changes and policy.
- Process: When an individual is eligible for diversion, the court may make a referral to a mental health service or a forensic mental health service for assessment. This assessment helps determine the person’s mental health needs and the most appropriate treatment plan.
- Treatment: Once assessed, the individual may receive mental health treatment and support services tailored to their needs. This can include therapy, medication, counseling, and other interventions aimed at addressing their mental health issues.
Other Important Points to Consider:
- Monitoring and Compliance: Individuals placed under Mental Health Diversion Orders must typically comply with their treatment or support program and engage with mental health services. There may be monitoring and reporting mechanisms in place to ensure compliance and assess progress.
- Review and Outcomes: The progress and outcomes of individuals under Mental Health Diversion Orders are periodically reviewed. The court, mental health professionals, and relevant authorities evaluate whether the person has made improvements in their mental health and whether further legal action is necessary.
- Discharge: Depending on the individual’s progress and compliance with the treatment plan, they may eventually be discharged from the Mental Health Diversion Order. In some cases, the charges against them may be dropped, and they may not have a criminal record related to the initial offence.
It’s essential to note that the specific procedures, criteria, and processes related to Mental Health Diversion Orders can change over time due to legislative updates and policy changes. Speak with a lawyer for the most up to date information on this.
Factors that the Magistrate Will Consider
The magistrate will consider the following factors before making a decision on a Section 14 application:
- The nature of the mental health impairment or cognitive impairment of the defendant,
- The nature, seriousness and circumstances of the alleged offence,
- The defendant’s suitability for the sentencing options available if they were found guilty of the offence,
- The defendant’s criminal history,
- Any relevant change to the their circumstances since the alleged offence,
- Whether they have previously received an order under the section or an equivalent section,
- Whether there is a treatment or support plan in relation to the defendant,
- Whether they are a danger to themselves, the complainant or to members of the public, and
- Any other relevant factors.
Benefits of Section 14 Mental Health Act
The benefit of Section 14 Mental Health Act is that it effectively discharges a defendant with a mental health impairment into the care of a responsible person.
While making Section 14 orders, the Magistrate has to take into consideration both the community’s safety as well as the best interests of the offender with a mental/cognitive impairment.
Magistrates only make such orders when they believe that the defendant will not re-offend, and that they will take appropriate steps to receive the necessary treatment.
Note that a Section 14 applicant also usually contains a care-plan from expert psychologies or psychiatrist.
A mental health professional must support the application with a report outlining a treatment support plan for the defendant. This plan forms part of the essential documents that are to be put before the Court.
Importance of Seeking Legal Advice from Criminal Law Solicitors
If you or someone you know is facing a criminal charge, and you believe they have some mental impairment, it is necessary to speak with criminal defence lawyers. They can help obtain diversion orders under Section 14 Mental Health Act.
Also note that if the Magistrate orders the defendant to undergo a treatment plan, they can call the defendants back in the court to face their original charges if they fail to follow the treatment plan.
For more information on this, do not hesitate to contact our experienced team of lawyers. Contact our team today for queries on criminal or traffic offence.