Can I Have My Criminal Charges Dismissed Due to Mental Health? Section 14 Orders in NSW

On 27 March 2021, new laws came into effect in New South Wales to deal with situations where persons suffering from mental health issues come into contact with the criminal justice system.

Among other things, the new laws cover:

• Applications in the local court to divert those who suffer from mental health impairment or cognitive impairment away from the court system (known as section 14 applications),
• Orders for mentally ill persons to receive treatment in a mental health facility (section 19 orders),
• The legal defence of mental illness, and
• Determinations of whether a person is fit to stand trial.

Here’s a summary of the laws relating to section 14 applications.

Mental health applications in the Local Court for state offences in New South Wales are made under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (‘the Act’).

Your section 14 mental health application will succeed if the court is persuaded that:

1. You have a mental health impairment or cognitive impairment, and
2. It is more appropriate for the magistrate to deal with you by way of a mental health treatment or support plan than otherwise in accordance with the law.

Section 4 of the Act explains that you have a ‘mental health impairment’ if:

1. You have a temporary or ongoing disturbance of thought, mood, volition, perception or memory,
2. Your disturbance is significant for clinical diagnostic purposes, and
3. Your 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.

Section 5 of the Act makes clear that you have a ‘cognitive impairment’ if:

1. You have an ongoing impairment in adaptive functioning
2. Your impairment relates to comprehension, reason, judgment, learning or memory, and
3. Your impairment 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.

Section 15 of the Act provides that, when deciding whether it is more appropriate to deal with you by way of mental health treatment or support plan than otherwise in accordance with the law, the magistrate may consider:

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

A mental health treatment or support plan may contain several requirements, such as:

1. Seeing your general practitioner and take prescribed medication,
2. Consulting a treating psychologist on a regular basis, and/or
3. Engaging in therapy, such as cognitive behavioural therapy.

The plan can last for up to 12 months.

Section 14 of the Act provides that if your application is successful, the magistrate may order that your case is dismissed and you are discharged:

• Into the care of a responsible person conditionally or unconditionally,
• Conditionally upon attending on a person or at a place for treatment or support, or
• Unconditionally.

Section 13 of the Act empowers a 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.

The section states that a magistrate may adjourn your case for any other reason he or she considers appropriate in the circumstances.

The magistrate can make interim orders when adjourning your case, which are orders that last until the next court date.

It is important to bear in mind that a successful section 14 application means you avoid a criminal conviction and also avoid a finding of guilt.

Going to court?

If you are going to court for a criminal or traffic law case and believe you may be suffering from a mental condition, call Sydney Criminal Lawyers anytime on (02) 9261 8881 for expert advice and formidable representation from our experienced, specialist criminal defence lawyers.

Our lawyers are always up-to-date with the latest developments in mental health law and undertake mental health applications on a regular basis.

We offer a free first appointment for anyone who is going to court for a criminal or traffic law case, and all mental health applications are undertaken on a ‘fixed fee’ basis – giving you certainty as to costs.