This article was written by Samira Ashkar - Senior Associate - Sydney
Samira holds a Bachelor of Laws and a Bachelor of Science (Psychology) from the University of Wollongong. She also has a Masters of Dispute Resolution from the University of Technology Sydney and has completed a Graduate Diploma in Legal Practice. Samira is admitted as a solicitor in New South Wales but is also highly experienced in Australian federal law areas...
Section 14 Orders: Diversion Under the Mental Health Act (NSW)
The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 was assented to in June 2020 and has now replaced the previous act, the Mental Health (Forensic Provisions) Act 1990. This Act changes the way the court system deals with defendants who are found to have mental health conditions or cognitive impairments and subsequently have charges withdrawn. The Act allows such defendants to be dealt with by way of Section 14 orders.
Section 32 Orders Replaced With Section 14 Orders
A significant reform that the new Act represents is that section 32 mental health orders no longer exist. Rather, the new Act provides a similar and updated process for eligible persons charged with summary offences to apply for.
What Are Section 32 Orders?
Previously, Section 32 of the Mental Health (Forensic Provisions) Act 1990 gave the court the power to divert an offender who was suffering from a mental health condition into the care and treatment of mental health professionals instead of dealing with them through the criminal justice system. The court could deal with a matter under section 32 if it considered that it was more appropriate for the person to be dealt with via a treatment or support plan than through the criminal justice system. This could occur at the application of the defence or prosecution or at the court’s own initiative.
A Section 32 application was usually supported by evidence from a mental health professional. This was generally in the form of a report that set out why such a course of action would be beneficial for the defendant and for the wider community. The magistrate had to be persuaded that it was more appropriate to deal with the matter under the mental health act than through the sentencing options available to the court. If the application was successful, the defendant was subjected to the conditions under the plan for a period of six months. If the defendant did not comply with the plan, they could be called back to court and dealt with by way of the usual sentencing process.
What Are Section 14 Orders?
With the new Act now in force, mental health orders will be made under section 14. These orders allow for a defendant with a mental health or a cognitive impairment to be released into the care of another person, on the proviso that they undertake a treatment or support program, or without any conditions. Making such an order does not constitute any finding in relation to a criminal charge whatsoever.
These new section 14 orders are very similar to the old section 32 orders but with three significant changes as discussed below:
Impairment definitions
The first difference is the definitions of mental health impairment and cognitive impairment, which are contained in part 1 of the new Act.
Section 4 of the new Act defines mental health impairment as “a temporary or ongoing disturbance of thought, mood, volition, perception or memory”. The impairment must be regarded as significant for clinical diagnostic purposes and must affect the person’s emotional wellbeing, judgment or behaviour.
A mental health impairment may arise as a result of a number of listed disorders – including anxiety, and an affective disorder including clinical depression and bipolar disorder, a psychotic disorder or a substance-induced disorder that’s not temporary – and it may also arise due to other reasons. However, a mental health impairment cannot be a temporary effect of ingesting a substance or a substance use disorder.
Section 5 states that a person has a cognitive impairment if they have an ongoing impairment in adaptive functioning and “an ongoing impairment in comprehension, reason, judgment, learning or memory”. However, the Act also states that cognitive impairments must result from a condition that leads to damage, dysfunction, developmental delay or deterioration of the person’s brain or mind.
Cognitive impairments can result from intellectual disability, borderline intellectual functioning, dementia, an acquired brain injury, drug or alcohol-related brain damage, such as foetal alcohol spectrum disorder or from some other reason.
List of factors for Magistrate to consider
Another major reform to the mental health order process, contained within section 15 of the new Act, is that it provides a list of factors that a magistrate may consider when deciding whether to grant a diversion. These include the nature of the person’s mental health impairment, the seriousness and circumstances of the offence/s, the suitability of sentencing options for the person if they are found guilty, and any changes that have occurred in the defendant’s situation since the alleged offending.
Other factors the court will consider are the defendant’s criminal history, whether a defendant has been the subject of a previous mental health order, whether a treatment plan has been prepared and the content of that plan, and whether the defendant represents a danger to themselves, a victim or anyone else.
Extension of monitoring period to 12 months
The third change to mental health order procedures brought by the new legislation is that magistrates may now call discharged defendants back into court to face their original charges if they have failed to follow their treatment or support program for up to 12 months from the date the order was made. Under the previous section 32 scheme, a magistrate could only call the subject of an order back into court in relation to the matter for a period of up to six months after the order was made.
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