- Key Takeaways
- What is a Section 32? | What is a Section 14?
- What is a ‘Mentally ill Person’ or ‘Mentally Disordered Person’?
- What is a ‘Mental Health Impairment’ or ‘Cognitive Impairment’?
- More Appropriate to Deal with Defendant under s14
- What Happens If the Defendant Breaches s14 Conditions
- How Long Does a Section 14 or section 32 Order Last?
Section 14 is the new section 32 which is an order a Magistrate in the Local Court can impose on a defendant facing criminal charges who is suffering a mental health or cognitive impairment in order to divert the defendant away from the criminal justice system. This results in the charges being dismissed, and the defendant is thereby discharged with or without conditions. This also results in no criminal record (non-conviction) for the defendant.
This article on section 14 diversionary pathway laws is written by our mental health lawyers Sydney team. For more on this, contact our Sydney office
People suffering mental health issues are getting into contact with the criminal justice system at an increasing rate.
The Mental Health Cognitive Impairment Forensic Provisions Act 2020 in NSW provides a framework to divert people suffering mental health issues who’re facing criminal charges away from the criminal justice system. It also compliments the Mental Health Act. The purpose of it is to focus on rehabilitation and treatment, rather than punishment, resulting in the charges being dismissed completely if the criteria for such a diversion is satisfied.
What is a Section 32? | What is a Section 14?
The section 32 is what now is called section 14 order under the Mental Health Cognitive Impairment Forensic Provisions Act . It is one of the diversionary pathways for defendant’s facing criminal charges whilst suffering mental health issues. This results in the dismissal of criminal charges, discharging a defendant with or without conditions, without a criminal record/non-conviction. Here is more on mental illness defences.
Here is more on what is the defence of mental impairment.
Section 32 and Section 14 Application
The Local Court can dismiss criminal charges and discharge a defendant into the care of a responsible person with or without conditions, under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
Alternatively, the Local Court can take any one of the following options:
(1) Dismiss the charges and discharge a defendant unconditionally, or
(2) Dismiss the charges and discharge the defendant on the condition that he or she attend a person or place specified by the Magistrate for assessment, treatment or the provision of support for his or her mental health impairment or cognitive impairment, or
(3) the Magistrate also has the power to instead order that the proceedings be adjourned in order for the defendant to be assessed or diagnosed; for the development of a treatment or support plan; for a responsible person to be identified in order to be able to make an order; or for any other reason considered appropriate by the Magistrate in the circumstances, according to section 13.
This application is commonly called the mental health or section 14 (formerly s32) application and only applies to local court proceedings involving summary offences or indictable offences dealt with in the local court, according to section 8.
Will a s14 Order Show On My Criminal Record Check?
Receiving any one of the above s14 orders (dismissal of charges and discharge) results in no penalty or punishment against a defendant. This also means that the defendant, whether or not he or she pleads guilty, will walk away with no criminal record/conviction whatsoever.
After charges end up getting dismissed under section 14, the charges or outcome will not appear on a criminal background check, if conducted by an employer. In contrast, getting a section 10 or CRO non-conviction order will appear on a background criminal record check conducted by an employer, although it will show as ‘non-conviction’.
How To Get a Section 32 or Section 14
The Magistrate can make any of those orders if the following 3 criteria in section 12 is satisfied, namely:
(1) it appears that the defendant has, or had at the time of the alleged offending, a ‘mental health impairment’ or ‘cognitive impairment’, and
(2) it appears on any evidence available (and if considered relevant) that it would be more appropriate to deal with the defendant in accordance with this Division than otherwise in accordance with law, and
(3) the defendant is not a ‘mentally ill person’ or a ‘mentally disordered person’.
Additional Conditional Conditions That Must Be Satisfied
In addition to the above 3 criteria, here are a few more requirements that must first be satisfied before a s14 order can be made by a Magistrate, namely:
(1) Treatment Available in Mental Health Facility: A precondition to enlivening a s14 discretionary order is that the condition be a ‘mental health impairment’ or ‘cognitive impairment’ for which ‘treatment is available in a mental health facility’ (whether inpatient or outpatient basis). This needs to be expressly stated in a report for the Magistrate to be able to move to the next considerations. This has been outlined in the case of Edwards v DPP NSWSC 105.
(2) Treatment or Case Plan: When discharging a defendant into the care of a ‘responsible person’, a treatment or case plan will normally be included as one of the conditions that a defendant must comply with. It is very helpful to a Magistrate if a treatment or case plan is already prepared. A treatment or case plane will not be required if a defendant is unconditionally discharged.’
A treatment or support plan means a plan outlining programs, services or treatments or other support that may be required by the defendant to address his or her apparent mental health impairment or cognitive impairment.
(3) Expert Reports: if the diagnoses asserted is a psychiatric condition in contrast to a psychological one, it’s important to ensure that the expert opinion comes from a psychiatrist with relevant experience and specialty in the field of expertise. The report must be in the appropriate legal form, outlining the experts experience, expertise in the relevant field of practice, and also expressly outline at the start of the report whether the expert is aware of and complies with the expert code of conduct and section 177 of the Evidence Act. In addition, the report should, when diagnosing a defendant, refer to the Diagnostically and Statistical Manual (DSM-5) with a basis for any conclusive opinions.
(4) Responsible person: This applies if the Magistrate is minded to impose discharge into the care of a responsible person. The case of Saunders v DPP  NSWSC 760 requires a court when discharging a person into the care of a ‘responsible person’ to clearly identify either a person or agency. This person is not required to be a doctor or mental health professional, nor is such a person required to sign any document or be compelled to provide any services. If the court imposes a conditional discharge with a requirement that the defendant attend a specified person or place specified for assessment, treatment or the provision of support, this will mean that he or she must attend a community mental health centre service for treatment and/or support. A ‘responsible person’ is then not required to be nominated.
Is the ‘responsible person’ required to report breaches? The responsible person is not compelled to report any breaches to the court but may do so at their discretion.
Is a treatment provider required to report breaches? A person who is to assess a defendant ‘s mental condition or provide treatment to his or her is not compelled to but may report a failure to comply with a condition of the order.
Do I Have to Plead Guilty to Get a s14 Order?
The Magistrate can make any of these orders at any time of the case, including at the start or any other time during the proceedings, regardless of whether or not a plea of guilty has yet been entered by the defendant, according to section 9.
What is a ‘Mentally ill Person’ or ‘Mentally Disordered Person’?
If a defendant is a ‘mentally ill person’ or a ‘mentally disordered person’ when he or she will be precluded from a section 14 order.
A ‘mentally ill person’ is defined in section 14 Mental Health Act 2007 (NSW) as someone who’s suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary:
(1) for his or her own protection from serious harm, or
(2) for the protection of others from serious harm.
The person’s continuing condition, likely deterioration of his or her condition, and likely effects of any such deterioration are all relevant considerations when considering if he or she is a ‘mentally ill person’.
A ‘mental illness’ means a condition that seriously impairs (temporarily or permanently) the mental functioning of a person and is characterised by the presence of any one or more of the following symptomatic:
- Severe disturbance of mood,
- Serious disorder of thought form,
- Sustained or repeated irrational behaviour indicating the presence of any one or more of the above mentioned symptoms.
Schizophrenia is an example of a mental illness.
In contrast, a ‘mentally disordered person’ is defined in section 15 Mental Health Act 2007 (NSW) as someone (whether or not suffering from mental illness) who’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control is necessary for his or her own protection from serious physical harm, or for the protection of others from serious physical harm.
What is a ‘Mental Health Impairment’ or ‘Cognitive Impairment’?
It is a precondition to a s14 order that it appear to the Magistrate that the defendant has or had at the time a ‘mental health impairment’ or a ‘cognitive impairment’.
Meaning of ‘mental health impairment’ is defined in section 4 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) as someone who:
- Has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
- The disturbance would be regarded as significant for clinical diagnostic purposes, and
- The disturbance impairs the emotional well-being, judgment or behaviour of the person.
A ‘mental health impairment’ may arise from any of the following disorders (but may also arise for other reasons):
- Anxiety disorder
- Effective disorder, including clinical depression and bipolar disorder,
- Psychotic disorder,
- Substance induced mental disorder that’s not temporary.
A person does not have a ‘mental health impairment’ if his or her impairment is caused solely by the temporary effect of ingesting a substance, or a substance use disorder. This means that a person who commits a crime while intoxicated, with no other clinically significant mental health impairment or cognitive impairment will not come within the definition of ‘mental health impairment’ or ‘cognitive impairment’.
Meaning of ‘cognitive impairment’ is also defined in section 4 as a person who:
- Has an ongoing impairment in adaptive functioning, and
- The person has an ongoing impairment in comprehension, reason, judgement, learning or memory, and
- The impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from a condition set out above or for other reasons.
A ‘cognitive impairment’ may arise from any of the following non-exhaustive conditions:
- Intellectual disability,
- Borderline intellectual functioning,
- Acquired brain injury,
- Drug or alcohol related brain damage, including foetal alcohol spectrum disorder,
- Autism spectrum disorder
More Appropriate to Deal with Defendant under s14
This part of the Magistrate’s consideration of a section 14 order is often called the second limb test.
Ultimately, the Magistrate must balance on the one hand, the purposes of punishment, and on the other hand, the public interest in diverting the mentally disordered from the criminal justice system. This is a discretionary judgement requiring consideration as to the seriousness of the offending.
The more serious the offending conduct is, the more importance public interest in punishment plays for the protection of the community.
If a defendant is disabled from being able to control his or her conduct, then it helps to find out the extent of this so that the court can limit considerations to the seriousness of the offending conduct. This, for example, is what the court did in the case of DPP v El Mawas  NSWCA.
If an order under s14 will produce a better outcome for both the defendant and community then a s14 order will likely be imposed in favour of the defendant.
In deciding whether it would be more appropriate to deal with a defendant in accordance with s14, the Magistrate can consider the following factors as outlined in section 15:
- Nature of the defendant’s apparent mental health impairment or cognitive impairment,
- Nature, seriousness and circumstances of the alleged offence,
- Suitability of the sentencing options available if the defendant is found guilty,
- Relevant changes in the defendant’s circumstances since the alleged offence,
- Criminal history of the defendant,
- Whether there has been a previous s14 or the former s32 order,
- Whether a treatment or support plan has been prepared in relation to the defendant and the content of that plan,
- Whether the defendant is likely to endanger the safety of him/herself, a victim, or any other member of the public,
- Other relevant factors.
What Happens If the Defendant Breaches s14 Conditions
If the Magistrate suspects that a defendant has failed to adhere to his or her s14 conditions, the Court can order the defendant to appear before the Magistrate.
Failure to comply with a s14 condition within 12 months of the defendant being discharged under this order gives the Magistrate the power to deal with the charge as if the defendant had not been discharged under a s14 order. This means that he or she will then be dealt with in the normal course according to law, according to section 16.
If a defendant fails to appear in court after the Magistrate has ordered for his or her attendance, the Court can issue an arrest warrant.
How Long Does a Section 14 or section 32 Order Last?
A section 14 order lasts for up to 12 months from the date the order is made by the Magistrate in court. During the 12 month period, the Magistrate has the power to order the defendant to return to court if there’s been a breach of any of the s14 conditions.
The former section 32 order which is now not applicable would last for up to 6 months. In contrast, the section 14 lasts for up to 1 year.