Mental Health Applications in NSW

On 27 March 2021, new laws came into effect which aim to divert those with mental health issues away from the criminal justice system and towards getting the help they need to move forward with their lives.

These laws are contained in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), and allow a person to avoid a criminal record or even having to be put through a trial, as long as they meet certain criteria.

The laws include:

1. Section 14 Applications: Diversion Away from the Local Court

These applications allow a defendant who has a mental health impairment or cognitive impairment to undertake a treatment program (which may include seeing a psychologist on a regular basis) for up to 12 months, rather than being sentenced by the courts under the normal criminal law.

This allows the person to avoid a criminal criminal record, and to even avoid a finding that they were guilty of an offence.

2. Section 19 Orders: Treatment for Mentally Ill and Mentally Disordered persons

These orders deal allow a magistrate to deal with a person who has a mentally ill or mentally disordered (which is generally more serious than a mental health impairment or cognitive impairment) by having them assessed at a mental health facility.

The magistrate can also order the person be discharged conditionally or unconditionally or into the care of a responsible person, or receive community treatment.

Under the new law, a person who is assessed in a mental health facility and determined to be mentally ill or mentally disordered will have the charges against them dismissed after 6 months.

This means there is no criminal record and no finding of guilt.

3. Section 28: The Mental Illness Defence

Those who are suffering from a mental health impairment and/or a cognitive impairment at the time of the alleged offence, and who were not aware of the nature and quality of their act or did not know their act was wrong are not criminally responsible for their act.

This is a complete defence to a criminal charge, which means the person must be found not guilty.

4. Part 4: Fitness to Stand Trial

There are certain situations where a defendant in a criminal case case cannot be made to go to trial.

This includes where the person does not understand the charges they are faced with, or how to plead (guilty or not guilty) to the charges, or the nature of the proceedings, or the effect of evidence given against them, or is not able to defend themselves or properly instruct their lawyers.

These new rules relate to New South Wales offences.

For Commonwealth Offences, the equivalent of a section 14 mental health application is contained in section 20BQ of the Crimes Act 1914.

If you are accused of a criminal offence and have mental health issues, it is important to speak with a lawyer who is experienced in mental health applications and can assist you to get the help you need, rather than be punished under the normal criminal law.

If you believe this may be you, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free first appointment with a defence lawyer who is vastly experienced in mental health law.

Click on a link below for more information.

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