In NSW, most people over the age of ten are legally responsible for their actions. If a person breaks the law, they may face criminal liability and receive a penalty. However, a person with a serious mental health impairment or cognitive impairment may be able to avoid criminal responsibility in certain circumstances.
Under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), a person charged with a criminal or traffic offence may apply to the Local Court for a diversion order. If the application succeeds, the Court may dismiss the charge and release the person without recording a conviction.
The Court may also release the person subject to conditions, such as supervision by a responsible person or compliance with a treatment plan.
The following information is general only. If you are facing criminal charges and believe mental health or cognitive impairment may be relevant, we recommend obtaining legal advice about your circumstances.
How Do You Apply for a Section 14 Diversion Order?
A person appearing before the Local Court can apply for a section 14 diversion order under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). A person can make an application even if they intend to plead not guilty to the offence.
If the Court grants the application, several outcomes are available. The most favourable outcome is for the Court to dismiss the charges and release the person without conditions.
The Court may also dismiss the charges and release the person:
- Into the care of a responsible person; or
- Subject to a requirement to attend a particular place for assessment, treatment, or support.
In these circumstances, the Court does not record a criminal conviction.
What Factors Does the Court Consider for a Section 14 Application?
A section 14 diversion order is not automatic, even where a person has a diagnosed mental health impairment or cognitive impairment.
The applicant must provide strong supporting evidence and explain why their circumstances justify diversion rather than traditional sentencing.
When deciding whether to grant a section 14 application, the Magistrate may consider:
- The nature and seriousness of the offence;
- The person’s mental health or cognitive impairment;
- The proposed treatment or support plan;
- The person’s criminal history;
- Whether other sentencing options are appropriate; and
- Whether the person has taken steps to address the underlying issues and reduce risks to the community.
What Documents Are Required for a Section 14 Application?
The Court generally requires detailed evidence to support a section 14 application. This may include a forensic psychological or psychiatric report confirming the person’s diagnosis.
The application should also include a treatment plan that explains the programs, services, or treatments the person will undertake to manage their impairment.
The Court may also require a letter from a responsible person who agrees to supervise the applicant for 12 months.
A responsible person may include:
- A psychologist, psychiatrist, or general practitioner;
- A caseworker or counsellor;
- A carer or family member; or
- An organisation such as a rehabilitation provider.
The responsible person must help ensure the applicant follows their treatment plan, including attending appointments and taking prescribed medication where required.
What Is a Cognitive Impairment?
A cognitive impairment affects a person’s ability to understand, reason, make decisions, learn, remember information, or adapt to everyday situations.
Cognitive impairments may result from conditions including:
- Intellectual disability;
- Autism spectrum disorder;
- Dementia;
- Acquired brain injury; or
- Brain damage caused by alcohol or drug use.
A person does not automatically qualify for a section 14 diversion order because they have a cognitive impairment. The impairment must have affected their functioning and contributed to the circumstances surrounding the offence.
What Is a Mental Health Impairment?
A mental health impairment includes conditions such as anxiety, depression, bipolar disorder, and some substance-related disorders.
However, a diagnosis alone is not enough. The person must show that the impairment caused a significant disturbance to their thoughts, mood, perception, memory, or decision-making at the time of the offence.
The impairment must have affected the person’s behaviour, judgment, or emotional wellbeing when they committed the alleged offence.
Can Alcohol or Drug Use Support a Section 14 Application?
Mental health or cognitive impairments caused by alcohol or drug use may support a section 14 application if the impairment is not temporary.
However, temporary impairment caused by voluntarily consuming alcohol or taking drugs will generally not qualify.
This means a person cannot rely on being intoxicated at the time of an offence as the sole reason for a section 14 application, unless the impairment occurred involuntarily.
What Happens If a Person Breaches a Section 14 Treatment Plan?
A person who receives a conditional release under section 14 must comply with their treatment or support plan for 12 months.
If they fail to follow the requirements, they may need to return to Court for the original criminal charge.
Courts rarely grant a second section 14 diversion order, so it is important that the person follows all treatment requirements and attends necessary appointments.
How Can a Lawyer Help With a Section 14 Application?
A lawyer can help prepare a strong section 14 application by gathering supporting evidence and presenting the relevant factors to the Court.
Legal assistance may include:
- Assessing whether a section 14 application is appropriate;
- Obtaining supporting medical or psychological evidence;
- Preparing submissions for the Local Court;
- Explaining the legal process; and
- Representing the applicant during the hearing.
Conclusion: Section 14 Mental Health Diversion Orders in NSW
A person facing criminal or traffic charges in NSW may be able to apply for a section 14 diversion order if they have a serious mental health impairment or cognitive impairment that affected their circumstances.
If the Court grants the application, it may dismiss the charges and release the person without recording a conviction. In some cases, the Court may require the person to follow a treatment or support plan.
Section 14 applications require careful preparation and supporting evidence. Obtaining advice from an experienced criminal lawyer can help you understand whether diversion may be available in your circumstances.
If you or someone you know wants more information or needs help or advice, please contact us on (02) 9818 2888 or email [email protected].