SECTION 14 APPLICATION | MENTAL HEALTH APPLICATION
WHAT IS A SECTION 14 APPLICATION?
Section 14 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (Mental Health Act) empowers the NSW Local Courts to dismiss Criminal charges against a Defendant and discharge the Defendant:
- Into the care of a responsible person, unconditionally or subject to conditions, or
- On the condition that the defendant attend on a person or at a place specified for assessment, treatment, or the provision of support for the defendant’s mental health impairment or cognitive impairment, or
- Unconditionally.
WHAT DOES THE COURT CONSIDER IN A SECTION 14 APPLICATION?
The Courts consider the following in a section 14 application:
- Whether the Defendant is or was suffering from a mental health impairment and/or cognitive impairment at the time of the alleged offending, and
- Whether it would be more appropriate to deal with the Defendant under the Mental Health Act rather than under Criminal law.
WHAT IS MENTAL HEALTH IMPAIRMENT?
For the purposes of the Mental Health Act,
A person has a mental health impairment if:
- the person 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 wellbeing, 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:
- an anxiety disorder,
- an affective disorder, including clinical depression and bipolar disorder,
- a psychotic disorder,
- a substance induced mental disorder that is not temporary.
WHAT IS COGNITIVE IMPAIRMENT?
For the purposes of the Mental Health Act,
A person has a cognitive impairment if:
- the person has an ongoing impairment in adaptive functioning, and
- the person has an ongoing impairment in comprehension, reason, judgment, 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 in subsection (2) or for other reasons.
The Court is informed of the diagnosis of a mental health impairment and/or cognitive impairment through a report from a psychologist or a psychiatrist tendered by the accused’s representative.
THE TEST
If the Court is satisfied that the Defendant is suffering from a mental health impairment and/or cognitive impairment, then the Court considers whether a section 14 dismissal is more appropriate than dealing with the matter under Criminal law.
In deciding whether it would be more appropriate to deal with a Defendant under the Mental Health Act, the Court may consider the following:
- the nature of the Defendant’s apparent mental health impairment and/or cognitive impairment,
- the nature, seriousness, and circumstances of the alleged offence/s,
- the suitability of the sentencing options available if the Defendant is found guilty of the offence/s,
- the relevant changes in the circumstances of the defendant since the alleged commission of the offence/s,
- the Defendant’s criminal history,
- whether the Defendant has previously been the subject of a Mental Health order,
- whether a treatment or support plan has been prepared in relation to the Defendant and the content of the treatment plan,
- whether the Defendant is likely to endanger the safety of any member of the public,
- any other relevant factor.
If the Court is satisfied that it is more appropriate to deal with the matter under the Mental Health Act, then the Court will make an order discharging the Defendant with or without conditions.
The usual Court practice when granting a section 14 application is to discharge the Defendant into the care of a psychologist or psychiatrist to follow a treatment plan.
LENGTH OF A SECTION 14 DISCHARGE
The Mental Health discharge can be for period of up to 12 months and if the Court suspects any breaches of the conditions of the discharge, then the Court can order the Defendant to appear before the Court, revoke the section 14 Mental Health Act order and deal with the matter under Criminal Law.
WILL A SECTION 14 DISCHARGE SHOW ON MY CRIMINAL RECORD?
If a Court dismisses the charges under a section 14 order, the Court will not record any convictions or impose any other penalty and the offence/s will not show on the Defendant’s criminal history.
For a consultation with a Criminal Lawyer, call AMA Legal on (02) 8610 3764.
