Mental Health Applications

Anyone that is charged by a court in NSW and who suffers from a mental health or cognitive impairment can apply to the court to have the charges dismissed from the ordinary court process and dealt with under a mental health treatment plan instead.

There are various mental health applications that can be made to the court. The main applications before the court are:
1. Section 14 applications 
2. Section 20BQ applications

Section 14 Applications 

A section 14 application is stated in section 14 of the Mental Health Cognitive Impairment Forensic Provisions Act. If successful, it is a diversionary pathway for people charged with a criminal offence who suffer from a mental health or cognitive impairment condition.

The law states that: 
A Magistrate may make an order to dismiss a charge and discharge the defendant 
(a)  into the care of a responsible person, unconditionally or subject to conditions, or
(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment, treatment or the provision of support for the defendant’s mental health impairment or cognitive impairment, or
(c)  unconditionally.

(2)  An order to dismiss a charge against a defendant does not constitute a finding that the charge against the defendant is proven or otherwise.
There are various considerations the Magistrate or Judge will need to take into account when hearing an application. These include: 
(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 of the Mental Health (Forensic Provisions) Act 1990,
(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.

Process in making the application

If you wish to make an application under section 14 of the act, your lawyer will do the following:
1. Advise the court that you wish to make an application and adjourn your matter. 
2. Obtain a medical report from a medico-legal specialist, answering to a letter of instruction your lawyer has prepared 
3. Review your report and discuss it with you to ensure there are no discrepancies 
4. Prepare submissions and arguments on your behalf 
5. Make the application on your behalf before the court

If the application is successful, as opposed to being held accountable under the criminal standard, you will be diverted from the normal court process and placed onto the treatment plan prepared by the medico-legal specialist for a maximum period of 12 months and no conviction is recorded against you. 

Section 20BQ Applications 

If you are charged with a commonwealth offence, the alternative to a section 14 application is a 20BQ application. It is an application under section 20BQ of the Crimes Act 1914 (Cth) for the court to dismiss a charge against someone charged with a criminal offence who suffers from a mental health or cognitive impairment and divert them either conditionally or unconditionally into a more appropriate treatment plan.

The law states:   
(1) Where, in proceedings in a State or Territory before a court of summary jurisdiction in respect of a federal offence, it appears to the court:
(a)  that the person charged is suffering from a mental illness within the meaning of the civil law of the State or Territory or is suffering from an intellectual disability; and
(b)  that, on an outline of the facts alleged in the proceedings, or such other evidence as the court considers relevant, it would be more appropriate to deal with the person under this Division than otherwise in accordance with law; the court may, by order:
(c)  dismiss the charge and discharge the person:
(i)  into the care of a responsible person, unconditionally, or subject to conditions, for a specified period that does not exceed 3 years; or
(ii)  on condition that the person attend on another person, or at a place, specified by the court for an assessment of the first-mentioned person's mental condition, or for treatment, or both, but so that the total period for which the person is required to attend on that other person or at that place does not exceed 3 years; or
(iii)  unconditionally; or
(d)  do one or more of the following:
(i)  adjourn the proceedings;
(ii)  remand the person on bail;
(iii)  make any other order that the court considers appropriate.

The court will consider a range of factors including: 
(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 of the Mental Health (Forensic Provisions) Act 1990,
(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.

To be successful in this application, the court will need to be satisfied that: 
1. You are suffering from a mental illness or intellectual disability within the meaning of the civil law of the state or territory of the court you are before; and 
2. It is more appropriate to deal with you under the section than otherwise in accordance with the law. 

Process to making an application

If you wish to make an application under section 14 of the act, your lawyer will do the following:

1. Advise the court that you wish to make an application and adjourn your matter. 
2. Obtain a medical report from a medico-legal specialist, answering to a letter of instruction your lawyer has prepared 
3. Review your report and discuss it with you to ensure there are no discrepancies 
4. Prepare submissions and arguments on your behalf 
5. Make the application on your behalf before the court 

If successful, the court can make the order for a period of 3 years.

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