Section 14 Orders: Diversion Under the Mental Health Act (NSW)

 The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) was assented to in June 2020 and will replace the previous act, Mental Health (Forensic Provisions) Act 1990 (NSW). 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with defendants who are found to have mental health conditions or cognitive impairments and subsequently have charges withdrawn.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 will 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?

At present, Section 32 of the Mental Health (Forensic Provisions) Act 1990 gives the court the power to divert an offender who is 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 may deal with a matter under section 32 if it considers that it is more appropriate for the person to be dealt with via a treatment or support plan than through the criminal justice system. This may occur at the application of the defence or prosecution or at the court’s own initiative. 

A Section 32 application is usually supported by evidence from a mental health professional. This is generally in the form of a report that sets out why such a course of action would be beneficial for the defendant and for the wider community. The magistrate must be persuaded that it is more appropriate to deal with the matter under the mental health act than through the sentencing options available to the court. If the application is successful, they are subjected to the conditions under the plan for a period of six months. If they don’t comply with the plan, they can be called back to court and dealt with by way of the usual sentencing process. 

What are section 14 orders?

When the new act comes into force, mental health orders will be made under section 14. These orders will 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 or 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 state of intoxication or 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

Section 15 of the new Act contains another major reform to the mental health order process is that 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 impairment, the seriousness and circumstances of the offence/s, the suitability of sentencing options for the person if they were found guilty, and any changes that have occured in the defendant’s situation since the alleged offending.

Other factors the court will consider are whether a defendant has been the subject of a previous mental health order, whether a treatment plan has been prepared and what is recommends, 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 legislations 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 current section scheme, a magistrate can 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 is made.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.