Section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020

ByBankstown Criminal Lawyers

Applications pursuant to Section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (“the Act”) can be made by a Defendant at any stage in the Local Court proceedings whether or not the Defendant has entered a plea.

This mechanism enables the Local Court to divert a defendant away from the criminal justice system so that they can be dealt with under the mental health provisions rather than according to criminal law. An order may be made under the Act on application or on the Magistrate’s own initiative.

The legislation enables the Court to deal with defendants who have mental health conditions and cognitive impairments and have the charge/s withdrawn and dismissed. This is beneficial in that this results in no finding of guilt on the part of the defendant.

An order under Section 14 allows a defendant with a mental health condition or a cognitive impairment to be discharged into the care of another person on the condition that they undertake a treatment or support program. This can be subject to none or some conditions.

Section 4 of the Act outlines what constitutes a mental health impairment:

  1. the person has a temporary or ongoing disturbance of thought, mind, volition, perception or memory, and
  2. the disturbance would be regarded as significant for clinical diagnostic purposes, and
  3. the disturbance impairs the emotional wellbeing, judgement or behaviour of the person.

A mental health impairment may arise from an anxiety disorder, an affective disorder, including clinical depression and bipolar disorder, a psychotic disorder or a substance induced mental disorder that is not temporary.

Section 5 of the Act outlines what constitutes a cognitive impairment and includes if:

  1. the person has an ongoing impairment in adaptive functioning; and
  2. the person has an ongoing impairment in comprehension, reason, judgement, learning or memory, and
  3. the impairment results from damage to or dysfunction, developmental delay or determination of the persons brain or mind.

A cognitive impairment may arise from any of the following conditions:

  1. intellectual disability;
  2. borderline intellectual functioning;
  3. dementia;
  4. an acquired brain injury;
  5. drug or alcohol related brain damage, including foetal alcohol spectrum disorder;
  6. Autism spectrum disorder.

In most instances, an order sought under Section 14 of the Act will be made pursuant to an application made by the Defendant. This is because generally a report from a suitably qualified psychologist and/or psychiatrist is required together with a comprehensive treatment plan.

In terms of Section 12 of the Act, the Magistrate may make an order under this provision or adjourn the matter if it appears to the Magistrate that the defendant has (or had at the time of the alleged commission of the offence) a mental health impairment, or a cognitive impairment, or both.

The Magistrate may make an order under this provision if it appears to the Magistrate, on an outline of the facts alleged in the proceedings, or other evidence the Magistrate considers relevant, it would be more appropriate to deal with the defendant in accordance with the Mental Health legislation than otherwise in accordance with the law.

In determining whether to make a Section 14 order, the Magistrate may consider a number of factors which include the nature of the defendant’s mental health 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, and any changes in the circumstances of the defendant since the alleged commission of the offence/s. Other factors including the defendant’s criminal history, whether the defendant has been subject to a previous mental health order, whether a treatment or support plan has been prepared and the conditions of that plan. Lastly, whether the defendant is likely to endanger their own safety or the safety of someone else.

It is important to bear in mind that the Court has a discretion as to whether a matter is to be dealt with according to Section 14 or the criminal justice system.

NCL can assist you if you are charged with a criminal offence and advise you on whether to pursue a Section 14 order or not.

Many people suffer from mental health impairments or cognitive impairments or both and we will advise you and guide you on the steps to take in this regard.

In many instances, people are diagnosed with mental health conditions or cognitive impairment when expert reports are obtained. This option can be discussed with one of our experienced lawyers at NCL.