In NSW, most people over the age of ten are legally responsible for their own actions. If they break the law, they incur criminal liability and may suffer the associated punishment. However, a person suffering from a serious mental illness or cognitive impairment may not be held responsible for their crimes or traffic offences in the Local Court.
In that case, the person will be released, and no conviction will be recorded. This release can either be unconditional, or the person may be released into the custody of a responsible person and required to undergo a treatment plan.
The following information is for general purposes only. If you are facing criminal charges, we strongly recommend you seek legal advice relevant to your individual circumstances.
How do you Apply for a Section 14 Diversion?
A person appearing before the Local Court can make an application under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act. They can make this application even if they are pleading not guilty to the offence.
A number of outcomes are possible if their section 14 application is successful. The most positive outcome for the defendant is for the charges to be dismissed, and for them to be discharged unconditionally. Alternatively, the charges may be dismissed with the person discharged to a responsible person or required to attend a particular place for assessment or treatment. In all these scenarios, no criminal conviction will be recorded.
Are Other Factors Considered?
It is important for defendants to know that a section 14 dismissal is not automatic, even when the defendant has a well-documented mental health or cognitive impairment. A well-prepared application will focus on providing other information to support the application and making a compelling case for why the defendant’s case falls within the scenarios contemplated by the legislation.
In addition to details included in the impairment and treatment plan, a magistrate will also consider factors such as the nature and seriousness of the offence, the suitability of other sentencing options, the defendant’s criminal history, and whether the defendant has taken steps to change their circumstances and reduce risks to the community.
What Documentation is Required?
When considering a section 14 application, the court will require a forensic psychological/psychiatric report containing a diagnosis. The court will also need a detailed treatment plan that outlines the programs, services or treatments required for the defendant to treat their mental health issues.
In addition, the court will require a letter from a person responsible confirming that they will supervise the defendant for 12 months. The responsible person is often the defendant’s psychologist, psychiatrist or GP, but it can also be their caseworker, carer, counsellor, or a family member. Alternatively, an agency, such as a rehabilitation clinic, can be the nominated person. The responsible person needs to ensure that the defendant follows their treatment plan, including taking their medication and attending necessary appointments.
What is a Cognitive Impairment?
A cognitive impairment involves a reduction in adaptive functioning, comprehension, reason, judgment, learning or memory. Such impairments can arise from intellectual disability, conditions such as autism and dementia, acquired brain injury, or brain damage that results from drug or alcohol use.
What is a Mental Health Impairment?
Mental health impairments include disorders such as anxiety, depression, bipolar, and conditions that result from substance use. However, it is not enough for a person to have a diagnosis of such a disorder. To avoid criminal responsibility, the accused needs to prove that there was a significant temporary or ongoing disturbance of their thought, mood, volition, perception or memory and that this impaired their emotional wellbeing, judgment or behaviour at the time of the crime.
Voluntary Consumption of Alcohol or Drugs
Cognitive impairments and mental health conditions can be caused by the consumption of alcohol or drugs. These conditions can qualify under a section 14 application if this consumption results in non-temporary impairments. In contrast, the temporary impairment that results from drinking or taking illicit drugs does not qualify. This means that it is not possible to make a section 14 claim solely on the basis that the defendant was drunk or high at the time of the offence (unless the impairment was involuntary).
Breach of Treatment Plan
A person granted a conditional release under section 14 must follow their treatment or support plan for 12 months. If they fail to follow the plan, they will need to appear before a magistrate for their original criminal conduct. It is rare for someone to be granted a second section 14 release, so it is essential for someone to abide by their treatment plan.
In NSW, a person may not be held responsible for a criminal or traffic offence on the basis that they were suffering from a serious mental illness or cognitive impairment. In such cases, the person may apply for a dismissal under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act.
If you or someone you know wants more information or needs help or advice, please contact us on 02 9792 8413 or email [email protected].