Intellectual Disability and Mental Health Orders

In the NSW court system, people with an intellectual disability or mental illness can sometimes be given special provisions, including mental health orders, to allow them to bypass the usual legal system and instead be diverted into treatment programs.

Although they are often treated the same way, intellectually disabled people face a different set of challenges to those who suffer from a mental illness, and this can make the court system extremely difficult for them.

What is the difference between the two?

There is often confusion in the criminal justice system around the difference between a mental illness and an intellectual disability.

Although many people treat them as similar or interchangeable, there are actually some very significant differences, which can have legal implications.

Some of the key characteristics of intellectual disability, which set it apart from mental illness, include:

• It is a lifelong condition and won’t go away or significantly improve with treatment.
• Intellectual disability limits the cognitive ability and understanding of those who suffer from it, whereas this isn’t necessarily the case with mental illness.
• Intellectual disability occurs before the age of 18, while mental illness can strike at any age.
• Medication can’t improve the symptoms of intellectual disability like it can with some mental illnesses.
• Intellectual disability is usually assessed by a psychologist, while mental illness is generally diagnosed by a psychiatrist.

It’s important to understand the difference between an intellectual disability and a mental illness.

Court-mandated programs which are intended to encourage mental illness sufferers to seek treatment and rehabilitation are likely to be ineffective for those suffering from an intellectual disability.

As intellectual disability limits the ability of its sufferers to understand and think about their actions, in many cases it is unfair to penalise them in the same way as someone who is suffering a mental illness.

Although their thoughts may be disturbed, someone suffering from a mental illness has the capacity to understand the consequences of their actions.

Intellectual disability and mental illness are not mutually exclusive either.

According to the Intellectual Disability Rights Service, there is a higher incidence of mental illnesses and disorders among people with an intellectual disability than the rest of the population.

What options are available for those suffering from an intellectual disability?

As with people suffering from a mental illness or other condition, intellectual disability sufferers can be dealt with under Section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW).

A Section 32 mental health order is designed to divert those who are suffering from mental conditions away from the mainstream criminal justice system and into treatment.

Under a Section 32, defendants will be diverted into a treatment or support program instead of facing the prospect of a penalty such as a fine or prison.

Section 32 orders can be applied for in the local court, or on appeal to a higher court.

A section 32 application can be made on appeal even if the application was refused or not made at all in the local court.

When seeking a Section 32 order, it’s vital to have an extensive report from a psychologist or psychiatrist that contains:

• A background containing personal, employment and psychological history
• A diagnosis of a mental disorder
• A statement to the effect that treatment is available at a mental health facility. This does not have to be a residential (live-in) facility and can be outpatient (non live-in) treatment
• An outline of the allegations
• An opinion on whether there is a link between the condition and the alleged offence and, if so, the nature and extent of the connection
• A comprehensive treatment plan for a period of up to 6 months

Defendants with mild intellectual disability may find it more difficult to get a Section 32 than those with very obvious intellectual disability, and it will often be more difficult to achieve a Section 32 in serious cases and driving cases.

If you or a loved-one is facing charges and may be suffering from an intellectually disability, it is a good idea to speak to a criminal defence lawyer who is experienced in assisting those with mental conditions.