MENTAL HEALTH & THE LAW

DIVERSION UNDER THE MENTAL HEALTH ACT

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 was assented to in June 2020 and has now replaced the previous act, the Mental Health (Forensic Provisions) Act 1990.

This new Act has changed the way the courts deal with defendants who are found to have mental health or cognitive impairments at the time of the alleged offence/s. The Act allows such defendants to be dealt with by way of section 14 orders.

SECTION 32 REPLACED WITH SECTION 14

Previously, section 32 of the Mental Health (Forensic Provisions) Act 1990 gave the court power to divert an offender who was suffering from a mental health condition at the time of the offence or alleged offence, into the care and treatment of mental health professionals instead of dealing with them through the criminal justice system.

The court could deal with a matter under section 32 if it considered it more appropriate for the offender to be dealt with pursuant to a mental health treatment plan rather than the criminal law. This could occur at the application of the defence or the prosecution or at the court’s own initiative.

A section 32 application was usually supported by evidence from a mental health professional in the form of a report indicating that the offender had been psychologically assessed and why such a course would be beneficial for them and for the community. If the court was persuaded that it was within both the offender’s and the public’s interest to divert the offender, then the offender would be diverted under this section into the care of a mental health professional and be subject to conditions under the proposed treatment plan for a period of 6 months. If the offender did not comply with this plan, they would be brought back to court and, in many cases, dealt with under the criminal law.


SECTION 14

Under the new Act mental health orders are made pursuant to section 14. These orders allow for an offender with a mental health or cognitive impairment to be released into the care of a responsible person on the condition that they undertake treatment. Making such an order does not constitute any finding in relation to the criminal charge/s and if the section 14 order is successful the charges are withdrawn and dismissed. This application can be made at any time whilst the proceedings are before the court.

These orders are very similar to the old section 32 orders with three significant changes.

Impairment definitions


The first difference is the definitions of mental health impairment and cognitive impairment.

Section 4 of the new Act defines ‘mental health impairment’ as “temporary or ongoing disturbance of thought, mood, volition, perception or memory.” The impairment must be regarded as significant for clinical diagnostic purposes and must affect the person’s emotional wellbeing, judgement or behaviour.

A mental health impairment may arise as a result of a number of listed disorders including anxiety, an affective disorder including clinical depression and bipolar disorder, a psychotic disorder or a substance-induced disorder that is not temporary and it may also arise due to other reasons. A mental health impairment cannot be a temporary effect of ingesting a substance or a substance use disorder.

Section 4 of the new Act provides that a ‘cognitive impairment’ is an “ongoing impairment in adaptive functioning and an ongoing impairment in comprehension, reason, judgement, learning or memory.” The Act also states that cognitive impairments must result from a condition that leads to damage, dysfunction, developmental delay or deterioration of the person’s brain or mind.

Cognitive impairments can result from intellectual disability, borderline intellectual functioning, dementia, an acquired brain injury, drug or alcohol-related brain damage, such as foetal alcohol spectrum disorder or from some other reason.

List of factors for the court to consider


Another major change is section 15 which provides a list of factors that the court may consider when deciding whether to grant this application.

These factors include but are not limited to:

  1. the nature of the person’s mental health or cognitive impairment;
  2. the nature, seriousness and circumstances of the alleged offence/s;
  3. the suitability of sentencing options for the person if found guilty of the offence/s;
  4. relevant changes in the circumstances of the defendant since the alleged commission of the offence/s;
  5. the defendant’s criminal history;
  6. whether the defendant has been subject of a previous mental health order;
  7. whether a treatment or support plan has been prepared and the content of that plan;
  8. whether the defendant is likely to endanger themselves, a victim or any other member of the public;
  9. other relevant factors.

Extension of monitoring period to 12 months

The third change is that the court may now call discharged defendants back to the court to face their original charge/s if they breach or fail to follow their treatment for up to 12 months from the date the order was made. Under the old legislation a Magistrate could only call upon them for a period of up to 6 months.

Discretionary Decision

Granting a section 14 order is a discretionary decision. If successful the offences for which an offender is charged are withdrawn and dismissed. If unsuccessful the matter proceeds under the jurisdiction of the criminal law.

If you have been charged with an offence and would like to make a section 14 application, call Karnib & Co Lawyers at any time on 0450503696 or email us on [email protected] to arrange a free consultation. For those who are unable to attend our offices, we offer conferences by telephone, Skype, Zoom and FaceTime anywhere around the world.