Section 14 Mental Health Application – Dismissing Criminal Charges

What is the Section 14 Mental Health Application?

Before 27 March 2021, persons suffering from mental health conditions who were accused of NSW criminal offences could apply for an order referring them to a diversionary regime, rather than subjecting them to a penalty under the general criminal law. These applications were made under section 32 of the Mental Health (Forensic Provisions) Act 1990 (‘MHFPA’), commonly referred to as section 32’s.

Section 32 of the MHFPA gave the court the power to divert a defendant who is suffering from a mental health condition into the care and treatment of mental health professionals rather than dealing with them through the criminal justice system.

The Mental Health Act

The new Mental Health Act commenced operation in NSW on 27 March 2021. The legislation facilitating the new regime is the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (‘MHCIFPA’)

Under the MHCIFPA an application can be made to have an accused discharged pursuant to the provisions in Division 2 of the Act covering sections 7 to 17.

The Two Limbed Test – Are You Eligible and Is It More Appropriate?

Caselaw for section 32 applications is still relied upon for section 14 applications.

In the leading case of DPP v El Mawas [2006] NSWCCA 154, Judge McColl made clear that two limbs needed to be satisfied before an application could succeed.

Judge McColl stated:

When one turns to s 32 it can be seen it requires the Magistrate to make at least three decisions. The first is to determine, in accordance with s 32(1)(a), whether the defendant is eligible to be dealt with under that section.

The Magistrate must next determine whether, having regard to the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant (including presumably any information the Magistrate has garnered under s 36), “it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with the law”.

Once the Magistrate has determined that it is more appropriate to deal with the defendant in accordance with s 32, the Magistrate must determine which of the actions set out in subs (2) or (3) [of section 32] should be taken.

The two limbs of the application were contained in section 32 of the MHFP Act. The two limbs of the application are now contained in section 12 of the new Act, MHCIFPA.

Section 12(1) replicated the limb 1 test in the old regime. It states:

• A Magistrate may make an order under this Division or adjourn proceedings if it appears to the Magistrate that the defendant has (or had at the time of the alleged commission of the offence to which the proceedings relate) a mental health impairment or a cognitive impairment, or both.

Section 12(1) only empowers a Magistrate to make orders under this section if the accused person is mentally impaired or cognitively impaired. The definitions of these impairments are expressed in sections 4 and 5 of MHCIFPA respectively.

Section 12(2) is the equivalent of limb 2 test in the old regime. It states:

The Magistrate may take action under this Division only 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 this Division than otherwise in accordance with law.
To guide the Magistrate on matters to consider when assessing the appropriates of dealing with the matter pursuant to section 14, section 15 provides eight factors for the Magistrate to consider. Section 15 states:

(a) the nature of the defendant’s apparent mental health impairment or cognitive impairment,

(b) the nature, seriousness and circumstances of the alleged offence,

(c) the suitability of the sentencing options available if the defendant is found guilty of the offence,

(d) relevant changes in the circumstances of the defendant since the alleged commission of the offence,

(e) the defendant’s criminal history,

(f) whether the defendant has previously been the subject of an order under this Act or section 32,

(g) whether a treatment or support plan has been prepared in relation to the defendant and the content of that plan,

(h) whether the defendant is likely to endanger the safety of the defendant, a victim of the defendant or any other member of the public,

(i) other relevant factors.

However, the Magistrate is not restricted to only those eight factors and may also consider other relevant factors per section 15(i).

A major component of the section 14 application is a well written report from a Psychologist or Psychiatrist which addresses the two limbs.