The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act) provides for the application of mental health treatment plans in the Local Court in New South Wales under Section 14.
Section 4 – Definition of Mental Health Impairment
A mental health impairment is a temporary or ongoing disturbance of thought, mood, volition, perception, or memory that is significant for clinical diagnostic purposes and impairs emotional well-being, judgment, or behaviour.
Examples of mental health impairments include anxiety disorder, affective disorder including clinical depression, psychotic disorder, and substance-induced mental disorder.
Note that mental health impairments do not include the temporary effects of ingesting a substance or substance use.
Section 5 – Definition of Cognitive Impairment
Cognitive impairment refers to an ongoing impairment in adaptive functioning relating to comprehension, reason, judgment, learning, or memory that results from damage to, or dysfunction, developmental delay, or deterioration of the brain or mind.
Artist: “Blitz” by Kim Macnaught (2019).
Causes of cognitive impairment may include intellectual disability, borderline intellectual functioning, dementia, acquired brain injury, drug or alcohol-related brain damage, or autism spectrum disorder.
What does the court look at when deciding a section 14 application and treatment plan?
When deciding whether to conditionally discharge an accused under section 14 of the Act where a mental health treatment plan is appropriate, a magistrate will consider a range of factors, including:
- The nature and seriousness of the mental health or cognitive impairment.
- The nature, seriousness, and circumstances of the alleged offence.
- Your suitability for sentencing options if found guilty of the offence.
- Your criminal history (if any).
- Whether you have previously been subject to orders under the same or similar provisions.
- The availability of a treatment or support plan.
- Whether you are a danger to yourself, the complainant, or the public.
- Any other relevant factors.
What are the features of a Mental Health Treatment Plan?
A mental health treatment plan may include the following:
- Consultation with a general practitioner,
- Regular consultation with a treating psychologist, and
- Engaging in therapy, such as Cognitive Behavioural Therapy (CBT), Acceptance and Commitment Therapy (ACT), Psychodynamic Psychotherapy, Eye Movement Desensitisation and Reprocessing (EMDR).
- The treatment plan can last up to 12 months.
What are the possible outcomes of a Successful Application?
If the application is successful, the magistrate may order that the charge be dismissed, and the individual be discharged:
- With or without conditions into the care of a responsible person, usually a health professional such as a treating psychologist, psychiatrist, counsellor or, in some cases a general practitioner, parent or family member.
- Conditionally upon attending treatment or support.
- Unconditionally.
Alternatively, the magistrate may adjourn the case for the individual to complete their treatment or support plan.
In most cases the order will require a condition that you comply with a mental health treatment or support plan.
Why consider making a section 14 application?
The Act provides a vital mechanism for individuals with mental health or cognitive impairments to receive the appropriate treatment and support, rather than facing the criminal system.
A successful section 14 application diverts the person from the criminal justice system and into medical treatment.
In doing so, in the appropriate circumstances and after considering the public interest, the court prefers that the person avoid a potentially debilitating and punishing criminal conviction and a finding of guilt, and allows them the chance to concentrate solely on their mental health recovery through rehabilitation.
What now?
If you have been suffering mental health issues and have been charged with a criminal offence please contact us immediately
We will be able to assess your case and give you options that may save you from a conviction.
Disclaimer
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