Section 32 Mental Health Applications

Click here for section 14 Mental Health Applications. This is new legislation that has replaced the Section 32 Applications.

Section 32 of the Mental Health (Forensic Provisions) Act 1990 allows a court to discharge a matter on the condition that the person enter into the prescribed treatment plan for a period of no more than 6 months. This is an alternative to dealing with the matter under the usual criminal law provisions.

There is a similar version of this application for Commonwealth offences, rather than state based ones, contained in section 20BQ of the Commonwealth Crimes Act 1914.

There are a number of requirements that must be met for this kind of application to be successful.

In it’s most basic form, to satisfy one of these applications a defendant must show:

• That they are cognitively impaired; or
• That they are suffering from a mental illness; or
• That they are suffering from a mental condition that can be treated in the community; and
• That there is a nexus between the illness, condition or impairment and the offence.

This is usually done through medical reports from psychiatrists, or sometimes psychologists. The reports need to meet a series of requirements which is outlined in the legislation but must include a treatment plan for future treatment.

Section 32 applications are not just as simple as meeting the criteria and having the matter diverted.

A court must also be satisfied that it is more appropriate to deal with the matter by way of section 32.

Some things that can prevent a magistrate from wanting to deal with the matter by way of section 32 is where:

• The offence is too serious
• The offence is highly prevalent
• Treatment has had no demonstrable impact on curbing the criminal offending of the defendant