SECTION 14 APPLICATION | MENTAL HEALTH DISCHARGE
What is a section 14 application?
- Section 14 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (Mental Health Act) empowers the Local Court 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 by the Magistrate 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 suffering from a mental health impairment and/or cognitive impairment, and
- Whether it would be more appropriate to deal with the Defendant under the Mental Health Act or Criminal law.
WHAT IS MENTAL HEALTH IMPAIRMENT?
For the purposes of the Mental Health Act,
- A person has a mental health impairment if—
- a. the person has a temporary or ongoing disturbance of thought, mood, volition, perception, or memory, and
- b. the disturbance would be regarded as significant for clinical diagnostic purposes, and
- c. 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—
- a. an anxiety disorder,
- b. an affective disorder, including clinical depression and bipolar disorder,
- c. a psychotic disorder,
- d. a substance induced mental disorder that is not temporary.
- A person does not have a mental health impairment for the purposes of this Act if the person's impairment is caused solely by—
- a. the temporary effect of ingesting a substance, or
- b. a substance use disorder.
WHAT IS COGNITIVE IMPAIRMENT?
For the purposes of the Mental Health Act,
- A person has a cognitive impairment if—
- a. the person has an ongoing impairment in adaptive functioning, and
- b. the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and
- c. 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.
- A cognitive impairment may arise from any of the following conditions but may also arise for other reasons—
- a. intellectual disability,
- b. borderline intellectual functioning,
- c. dementia,
- d. an acquired brain injury,
- e. drug or alcohol related brain damage, including foetal alcohol spectrum disorder,
- f. autism spectrum disorder.
The Court usually informs itself of the diagnosis of a mental health impairment and/or cognitive impairment through a report from a psychologist or a psychiatrist.
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 appropriate.
FACTORS CONSIDERED IN DETERMINING WHETHER A SECTION 14 DISMISSAL IS APPROPRIATE
- In deciding whether it would be more appropriate to deal with a Defendant under the Mental Health Act, the Court may consider the following:
- 1. the nature of the Defendant's apparent mental health impairment or cognitive impairment,
- 2. the nature, seriousness, and circumstances of the alleged offence,
- 3. the suitability of the sentencing options available if the Defendant is found guilty of the offence,
- 4. relevant changes in the circumstances of the defendant since the alleged commission of the offence,
- 5. the Defendant's criminal history,
- 6. whether the Defendant has previously been the subject of a Mental Health order ,
- 7. whether a treatment or support plan has been prepared in relation to the Defendant and the content of that plan,
- 8. whether the defendant is likely to endanger the safety of the defendant, a victim of the defendant or any other member of the public,
- 9. other relevant factors.
- If the Court is satisfied that it is appropriate to deal with the matter under the Mental Health Act, then the Court will make an order discharging the Defendant with conditions or unconditionally.
- 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 the treatment plan.
LENGTH OF A SECTION 14 MENTAL HEALTH ACT ORDER
- The Mental Health Act order is for a period of 12 months and if the Court suspects any breaches of the conditions of the order, then the Court can order the Defendant to appear before the Court, revoke the section 14 Mental Health Act order and deal with the Criminal charges under Criminal Law.
- If a Court dismisses the charges under a section 14 order, the Court will not record any convictions or impose a penalty.
The above should not be treated as legal advice but general information.
For a free consultation with a Criminal Lawyer in Sydney, call AMA Legal on (02) 8610 3764.
