Mental Health applications are a very complex area of law, they were for many years referred to as ‘section 32 applications’, however, the law has recently been amended.
In summary, a person accused of a criminal offence in NSW could apply to the court to have them diverted into a mental health program rather than be dealt with under the scope of the criminal law.
There are two different applications that can be made, it largely depends on what offences you have been charged with.
1. Section 14 Application (formerly known as a section 32 application) – For NSW based offences
2. Section 20BQ Application – For Commonwealth based offences.
Section 14 & section 20BQ applications are only available to a defendant in the local court. It is important to note that if a magistrate discharges a person by way of section 14 or section 20BQ, it is not a finding of guilt.
Section 14 Application
In New South Wales, the law surrounding mental health applications was recently overhauled. The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (‘The act’) introduced a much clearer regime.
THE ORDERS THAT CAN BE MADE:
Pursuant to section 14 of the act, a magistrate can dismiss the discharge of the defendant as follows:
a) Into the care of a responsible person, unconditionally or subject to conditions, or
b) On the condition that the defendant attend on the person or at the place specified by the magistrate for assessment, treatment or the provision of support for the defendant’s mental health impairment or cognitive impairment, or
The test for whether a person can be discharged pursuant to section 14 of the act is described in section 12 of the act, it is a two ‘limb’ test as follows:
FIRST LIMB: 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 cognitive impairment, or both.
SECOND LIMB: It is appropriate to deal with the defendant in accordance with this division than otherwise in accordance with the law.
THE FIRST LIMB:
Mental health impairment
Defined by section 4(1) of the 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, judgement or behaviour of the person.
A mental health impairment may arise from any of the following disorders as well as for any other reason:
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 temporary.
Defined by section 5(1) of the act, a person has a cognitive impairment if:
a) The person has ongoing impairment in adaptive functioning, and
b) The person has an ongoing impairment in comprehension, reason, judgement, 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.
A cognitive impairment may arise from any of the following conditions as well as for any other reason:
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 timing of the impairment
The impairment could either be shown to have occurred at the time of the offence OR at the time of the hearing.
THE SECOND LIMB:
As previously discussed, the second limb involves a question of whether it is appropriate in the circumstances to make an order under section 14, in deciding whether it would be more appropriate to deal with a defendant by this course, a 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 subject of an order under this act or section 32 of the old legislation.
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 a victim or any other member of the public,
i) Other relevant factors.
The court would consider all of these factors in determining whether it is appropriate in the circumstances to discharge the defendant in accordance with section 14 of the act.
HOW LONG DO THE ORDERS LAST?
An order pursuant to section 14 can be made for a period of up to 12 months.
Section 20BQ Application
Section 20BQ of the Crimes Act 1914 (Cth) acts in a much similar way to section 14 of the act, it provides that the court would dismiss the charges and discharge you either conditionally or unconditionally for a period of time.
The reason for having two separate types of applications is because a section 14 application cannot be made when a person is charged with a commonwealth offence, and to the opposite effect, a section 20BQ application cannot be made when the person is charged with an offence in NSW.
The test for whether a person can be discharged pursuant to section 20BQ of the act is listed as follows:
LIMB ONE: You are suffering from a mental illness or intellectual disability within the meaning of the civil law of the state or territory of the court you are before, and
LIMB TWO: It is more appropriate to deal with you under the section than otherwise in accordance with law.
THE FIRST LIMB:
A mental illness is defined to include a condition that impairs (temporarily or permanently) the functioning of a person and can be characterised by the presence of any of the following symptoms:
c) Serious disorder of thought-form
d) Severe disturbance of mood,
e) Sustained or repeated irrational behaviour indicating the presence of any one or more of the above symptoms.
An intellectual disability is defined by the common law to include a disability that can be characterised by significant limitations in intellectual functioning and adaptive behaviour which covers many every day. Social and practical skills. The disability originates before the age of 18.
THE SECOND LIMB:
As previously discussed, the second limb involves a question of whether it is appropriate in the circumstances to make an order under section 20BQ, in deciding whether it would be more appropriate to deal with a defendant by this course, a magistrate may consider the following:
a) The nature and severity of your mental illness or intellectual disability,
b) The nature, seriousness and circumstances of the alleged offending,
c) Any relevant change to your circumstances since the alleged offending,
d) Your criminal history or lack thereof,
e) Whether you have previously received an order under the section or an equivalent section,
f) Whether a treatment plan or support plan has been prepared in relation to you, and
g) Whether it is in the community’s interest to divert you away from the criminal justice system and into treatment.
HOW LONG DO THE ORDERS LAST?
Unlike a section 14 application, Section 20BQ applications can stipulate a period of up to three years.
PREPARING A MENTAL HEALTH APPLICATION
Section 14 and 20BQ applications are extremely complex in nature, it is extremely important you get advice from an experienced solicitor in order to best prepare your case. Most crucially it is important you get in contact with a psychologist or a psychiatrist who may be able to assist in preparing a court report. Our solicitors have an extensive list of psychologists who provide expert reports ready to go on short notice.
Once the report is prepared, we will outline our argument to the court and ensure everything is ready to go including the treatment plan which will be suggested by the treating psychologist. Feel free to reach out to our team of experienced mental health solicitors on 0415 932 866 for advice from an experienced solicitor.