Section 14 Mental Health Act

In New South Wales, it is acknowledged by the law that mental health or cognitive impairment can hinder an individual’s ability to reason or comprehend the nature of their actions. If an individual falls under this category and has committed a crime, they may be excused from criminal responsibility and instead, directed towards a treatment or care plan or given a special verdict by a jury of “act proven but not criminally responsible” due to their mental health or cognitive impairment.


Recently, multiple forensic mental health laws in New South Wales have undergone changes under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (Mental Health and Cognitive Impairment Forensic Provisions Act 2020 No 12 – NSW Legislation). The objective of these reforms is to ensure the safety of the community and address the victim’s requirements while simultaneously managing the offender’s mental health.

Section 32, which was one of the commonly used defences for mental health, has been replaced by Part 2, Division 2 (sections 12-17) of the new Act. Under the new Act, Section 14 allows a defendant who is suffering from mental illness or cognitive impairment to be released under the care of another person, provided that they agree to undergo a treatment or support program. This section can also be applied without any conditions. It is applicable for those who have been accused of summary offences or indictable offences that can be handled in the NSW Local and Children’s courts.


When considering whether to make a Section 14 order, the Magistrate must carefully weigh the community’s safety against the offender’s welfare. Typically, Magistrates will not approve a diversion order unless they are confident that the defendant will receive adequate treatment and avoid reoffending. A crucial component of the application process is the inclusion of a comprehensive care plan, prepared by a psychologist or psychiatrist, which is submitted to the Court as supporting documentation.


If you are contemplating making a section 14 application, you must inform your solicitor in advance to allow for adequate preparation time. A mental health professional must produce a report detailing your mental health status and outlining a suitable treatment plan that meets the Court’s requirements.


Numerous diversion applications are unsuccessful due to the inadequacy of the health professional’s report and treatment or support plan. Ultimately, the Magistrate has complete discretion when evaluating a Section 14 application, and they may reject it outright if they determine that the diagnostic information before the Court is insufficient to support the proposed treatment plan.


Duration of a Section 14 Order


The duration of a section 14 order is up to 12 months from the day it is issued by the Magistrate in court. Within this timeframe, the Magistrate has the authority to summon the defendant back to court if they have violated any of the conditions outlined in the s14 order.


Previously, the section 32 order, which is no longer relevant, would only last for a maximum of 6 months. In comparison, the section 14 order remains in effect for up to one year.


In addition, in case the Magistrate suspects that a defendant has violated the conditions outlined in their s14 order, the Court may direct the defendant to appear before the Magistrate.


Should the defendant breach any of the section 14 conditions within 12 months of their discharge under this order, the Magistrate holds the power to treat the charge as if the defendant had not been released under a section 14 order. In such a case, the defendant will be handled in accordance with the standard legal process as stipulated in section 16.


If the defendant fails to show up in court after being ordered to attend by the Magistrate, the Court can release an arrest warrant.

The Act defines mental health impairment as a significant disturbance of thought, mood, volition, perception, or memory that impairs a person’s emotional well-being, judgment, or behaviour. It may arise from anxiety disorder, affective disorder (including clinical depression and bipolar disorder), psychotic disorder, or a non-temporary substance-induced mental disorder. However, a person who has an impairment caused solely by the temporary effect of substance ingestion or a substance use disorder does not fall under this category.


On the other hand, a cognitive impairment under the Act refers to an ongoing impairment in adaptive functioning, comprehension, reason, judgment, learning, or memory resulting from damage to or dysfunction, developmental delay, or deterioration of a person’s brain or mind. This impairment may arise from intellectual disability, borderline intellectual functioning, dementia, acquired brain injury, drug or alcohol-related brain damage (including fetal alcohol spectrum disorder), or autism spectrum disorder.

There are various factors that the court must take into account in determining whether to make a s14 order. These factors take into account the circumstances of the alleged offence, he nature and seriousness and circumstances of the alleged offence, the applicants impairment, the suitability of sentencing options in the case of conviction, any changes in the defendant’s situation since the alleged offence, their previous criminal record and mental health order, the current mental health conditions of the applicant, the existence and contents of a treatment plan, and whether the defendant poses a risk to themselves, any victims, or others.

Receiving a section 14 order, which involves the dismissal of charges and discharge, will not result in any penalty or punishment against the defendant. This implies that regardless of whether or not the defendant enters a guilty plea, they will not have a criminal record or conviction.


If the charges are dismissed under section 14, they will not show up on a criminal background check conducted by an employer. On the other hand, receiving a section 10 or CRO non-conviction order will appear on an employer’s background criminal record check, but it will be labelled as a ‘non-conviction.

If you are facing a criminal charge and suspect that you have a mental health or cognitive impairment, or you suffer from a mental disorder or illness, it is crucial to seek the assistance of a experienced criminal defence lawyer.


At Lyons Law Group, we have considerable expertise in representing individuals with mental health problems. We will help you obtain an evaluation from a qualified psychologist or psychiatrist who can write a Section 32 or Section 14 mental health reports and develop effective treatment and care plans for the Courts.


Do not hesitate to reach out to our criminal lawyers in Burwood for a no-cost initial consultation and evaluation of your case.

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