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    Section 14 Mental Health Application

    The new Section 14 Mental Health Application came into effect on 27 March 2021, replacing the old Section 32 Mental Health Application process.

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      While the effect of the new laws is largely the same as the previous scheme, there are some significant differences in the tests to be imposed when a Court determines such an application.

      A Section 14 application can be used by a person charged with a criminal or traffic offence to avoid a criminal record. However, the accused must prove that they suffer from a mental health impairment or cognitive impairment. If the Section 14 application is successful, then the applicant will avoid a conviction for the offence(s).

      Generally, a section 14 order will require a person to comply with a mental health treatment plan. Conditions on the plan may include taking medication and regularly consulting their treating psychologist or psychiatrist.

      One of the most significant changes is that an order can be for up to 12 months, whereas the previous Section 32 orders were limited to 6 months.

      If you have been charged with a criminal or traffic offence and believe you may be suffering from a mental health condition or a cognitive impairment, call Astor Legal anytime on (02) 7804 2823 or email us at: info@astorlegal.com.au.

       

      What is a section 14 application?

      A ‘section 14 application’ is a mental health application for criminal charges to be dismissed without a conviction or finding of guilt. It is usually on the condition that a person complies with a mental health treatment or support plan, which can last for up to 12 months.

      A Section 14 order is made pursuant to Section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

      The court may also adjourn the case to another date to allow an applicant to complete treatment. If treatment is successfully completed, there is a stronger chance of the charge(s) being dismissed.

      The Court also has the power to dismiss the charges unconditionally, in which case there would be no treatment plan. This is quite a rare occurrence.

       

      What are the benefits of a section 14 application?

      The biggest benefit of a section 14 application is that it allows a person to avoid a criminal record whether they are ultimately guilty of the offence(s) or not.

      Another benefit is that a Section 14 application can be made at any time. This is advantageous as cases can take months or even years before they reach a final hearing date and a person is found ‘not guilty’. A section 14 mental health application can be made early in proceedings and if successful, result in the case being dismissed without needing to wait for a lengthy period of time.

      Even if a section 14 application is unsuccessful, it will not affect the case as a whole. Whether a person maintains a plea of ‘not guilty’ or enters a plea of guilty, the court still has the power to make a section 14 order.

       

      How to Get a Section 14 Application

      In order to successfully get a section 14 application, you must satisfy the court of the following criteria:

      1. You have a mental health impairment or cognitive impairment, and
      2. It is more appropriate to deal with you under the section than otherwise in accordance with the law.

       

      What is a Mental Health Impairment?

      Under Section 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, a ‘mental health impairment’ is defined as:

      • a temporary or ongoing disturbance of thought, mood, volition, perception or memory,
      • that disturbance is significant for clinical diagnostic purposes, and
      • that disturbance impairs your emotional wellbeing, judgment or behaviour.

      Mental health impairment includes, but is not limited to:

      • Anxiety disorder,
      • Affective disorder, including clinical depression and bipolar disorder,
      • Psychotic disorder, and
      • Substance induced mental disorder that is not temporary.

      Mental health impairment does not include:

      • The temporary effect of ingesting a substance, or
      • A substance use disorder.

       

      What is a Cognitive Impairment?

      Under Section 5 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, a ‘cognitive impairment’ is defined as:

      • an ongoing impairment in adaptive functioning
      • an impairment that relates to comprehension, reason, judgment, learning or memory, and
      • an impairment that results from damage to, or dysfunction, developmental delay or deterioration of your brain or mind.

      Cognitive impairment may arise from:

      • Intellectual disability,
      • Borderline intellectual functioning,
      • Dementia,
      • Acquired brain injury,
      • Drug or alcohol related brain damage, including foetal alcohol spectrum disorder, or
      • Autism spectrum disorder.

       

      What are the Section 14 Application Factors?

      Under Section 15 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, the Court will consider the following factors when deciding whether to grant a section 14 application:

      1. The nature of your mental health impairment or cognitive impairment,
      2. The nature, seriousness and circumstances of the alleged offence,
      3. Your suitability for the sentencing options available if you were found guilty of the offence,
      4. Any relevant change to your circumstances since the alleged offence
      5. Your criminal history,
      6. Whether you have previously received an order under the section or an equivalent section,
      7. Whether a treatment or support plan has been prepared in relation to you,
      8. Whether you are a danger to yourself, the complainant or a member of the public, and
      9. Any other relevant factors.

       

      What is a Mental Health Treatment or Support Plan?

      A mental health treatment or support plan is a treatment proposal that accompanies a section 14 application. The plan must be from a mental health professional such as a psychologist or psychiatrist.

      Generally, there will also need to be a detailed report from a forensic psychologist or psychiatrist setting out the basis for the treatment plan.

      A mental health treatment or support plan can include requirements such as:

      • Take prescribed medication,
      • Attending sessions with a treating psychologist or psychiatrist,
      • Engaging in therapy, such as cognitive behavioural therapy,
      • Complying with all reasonable directions of medical practitioners.

       

      What is a Section 14 Order?

      Section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 explains that a section 14 order is a court order to dismiss a charge and discharge the defendant:

      • Into the care of a responsible person conditionally or unconditionally,
      • On the condition that the defendant attend on a person or at a place for treatment or support, or

      The order will normally come with a condition that you comply with a mental health treatment or support plan.

       

      Who Can Be a ‘Responsible Person’?

      A responsible person must be a medical professional such as a psychologist, psychiatrist, counsellor or, in some cases, a general practitioner.

       

      How Long Is a Mental Health Treatment Plan?

      A mental health treatment plan can last for up to 12 months.

       

      Can my case be adjourned to undertake treatment or support?

      Yes. The magistrate to adjourn your case to enable:

      • You to be assessed or diagnosed,
      • Your mental health treatment or support plan to be developed, or
      • A responsible person to be identified.
      • A magistrate may adjourn your case for any other reason he or she considers appropriate in the circumstances.

      The magistrate also has the power to make interim orders when adjourning your case. These are orders that last until the next court date.

       

      Breaching a Section 14 Order

      If you breach a Section 14 order, then you can be brought back before the court and sentenced according to law. This means that you may receive a criminal record or more serious penalties, including a possible jail term.

      Under Section 16 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 a failure to comply with a mental health treatment plan can result in a breach of a section 14 order.

       

      Objectives of the New Mental Health Regime

      The new mental health regime was introduced after a review involving legal and health professionals. There was also reference to two reports by the NSW Law Reform Commission and a review of the Mental Health Review Tribunal.

      The objectives of the new mental health regime are to:

      1. Protect victims and the community,
      2. Ensure that people with mental health impairment or cognitive impairment who commit crimes receive the treatment, support and supervision they need to get well and prevent reoffending, and
      3. Provide clear language, structure and processes, to enable efficient and effective responses to people with mental health and cognitive impairment.

       

      Two Limbs of a Section 14 Mental Health Application

      Section 12 of the new Act re-establishes the two-step test for a section 14 mental health application. This mirrors the position under the old section 32 application.

      The two limbs of the test are:

      “(1) A Magistrate may make an order under this Division or adjourn proceedings if it appears to the Magistrate that 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 a cognitive impairment, or both.

      (2) The Magistrate may take action under this Division only if it appears to the Magistrate, on an outline of the facts alleged in the proceedings or other evidence the Magistrate considers relevant, it would be more appropriate to deal with the defendant in accordance with this Division than otherwise in accordance with law.”

       

      In DPP v El Mawas [2006] NSWCA 154, the New South Wales Court of Appeal stated:

      “[75] When one turns to s 32 it can be seen it requires the Magistrate to make at least three The first is to determine, in accordance with s 32(1)(a), whether the defendant is eligible to be dealt with under that section.

      [76] The Magistrate must next determine whether, having regard to the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant (including presumably any information the Magistrate has garnered under s 36), “it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with the law”.

      [80] Once the Magistrate has determined that it is more appropriate to deal with the defendant in accordance with s 32, the Magistrate must determine which of the actions set out in subs (2) or (3) [of section 32] should be taken.”

       

      First Limb

      Under the first limb of the section 14 application test, you must establish that you have a ‘mental health impairment’ and ‘cognitive impairment’.

      A ‘mental health impairment’ is defined under section 4 of the Act while a ‘cognitive impairment’ is defined under section 5.

       

      Second Limb

      The second limb of the section 14 mental health application test is more complex. It is similar to the test under the old section 32 mental health application test, which requires the Court to decide whether it is more appropriate to divert the applicant under section 14.

      Under Section 15 of the new Act, there is now a list of considerations which will guide a Magistrate in making this decision. These considerations include:

      (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 the subject of an order under this Act or section 32 of the Mental Health (Forensic Provisions) Act 1990,

      (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 the defendant, a victim of the defendant or any other member of the public,

      (i) other relevant factors.

       

      Section 14 Mental Health Order to be Made

      The final orders, previously under section 32(3), are now contained in section 14 of the Act. This allows a court to dismiss the charge and discharge a defendant:

      “(a) into the care of a responsible person, unconditionally or subject to conditions, or

      (b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment, treatment or the provision of support for the defendant’s mental health impairment or cognitive impairment, or

      (c) unconditionally.”

      Significantly, an order under section 14 means that there is no conviction recorded against the defendant and no finding of guilt.

      A section 14 mental health order does not mean that an applicant does not receive any punishment. In DPP v El Mawas at [73], McColl JA said:

      “… adopting the diversionary route does not mean that a defendant is not exposed to punishment. While an order under s 32(3) is not custodial in the strict sense, it may involve the imposition of conditions restricting a discharged defendant’s freedom of movement and actions. Compliance with those conditions is ensured by the Magistrate retaining a supervisory jurisdiction for 6 months after a s 32(3) order is made: s 32(3A)-(3D)”.

      There may also be situations where a Magistrate wants an applicant to engage in further treatment. In this situation, section 13 of the Act allows a Court to adjourn proceedings.

       

      What are the Differences Between the Section 32 Mental Health Application and Section 14 Mental Health Application?

      There are a number of important differences between the section 32 mental health application and section 14 application schemes. While the structure of both regimes are largely similar, the new scheme clarifies a number of matters.

      The most significant changes are that section 15 of the Act codifies the criteria the Court is to look at in determining whether to grant a section 14 mental health application.

      This provides lawyers and judicial officers with some clarity as to what factors they should emphasise and which cases would warrant the exercise of their discretion.

      When assessing whether to divert an applicant, the Court will have regard to the alleged facts to assess the seriousness of the offence. However, the Court can also take into account other evidence. This can be significant when a prosecution case is weak. A weak police case would lend itself to the section 14 application being granted.

      Despite the change in legislation, previous cases are still relevant, and the decision of the Court to divert an applicant, “cannot be exercised properly without due regard being paid to the seriousness of the offending conduct for which the defendant is before the court. Clearly, the more serious the offending, the more important will be the public interest in punishment being imposed for the protection of the community and the less likely will it be appropriate to deal with the defendant in accordance with the provisions of the Act” (Confos v DPP [2004] NSWSC 1159, Howie J at [17]).

      The Court must still engage in a balancing exercise as was explained in DPP v El Mawas at [71]:

      “the public interest in those charged with a criminal offence facing the full weight of the law against the public interest in treating, or regulating to the greatest extent practical, the conduct of individuals suffering from any of the mental conditions referred to in s 32(1)…with the object of ensuring that the community is protected from the conduct of such persons.”

      And further, at [17]:

      “what is being balanced is two public interests, to some extent pulling in two different directions. It is not a matter of weighing the public interest in punishment as against the private interest of the defendant in rehabilitation.”

      There are now a number of factors which may pull in different directions depending on the particular circumstances of each case. The new legislation would seem to place more emphasis on an applicant’s subjective case.

      The point of a section 14 mental health application is to determine whether diversion is appropriate noting that communities are better protected by properly rehabilitated individuals (R v Pullen [2018] NSWCCA 264 at [84]).

       

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