MENTAL HEALTH APPLICATION PROCESS

Individuals facing criminal charges and experiencing a mental health condition, might want to consider making a mental health application in the Local Court. Upon making such an application, a Magistrate will evaluate its suitability and must be convinced of two factors:

1. That the individual either currently has or had at the time of the offence a mental health impairment or cognitive impairment, and

2. That addressing the matter through the mental health diversionary program is more appropriate than the criminal justice system.

The Magistrate will make the determination based on evidence, usually, this will be in the form of a report from a forensic psychologist or psychiatrist.

A successful application will allow the individual to walk away from their criminal charges without a conviction, granting them the opportunity to concentrate on their recovery.

SECTION 14 APPLICATION

In New South Wales, there has been a recent overhaul of the legislation governing mental health applications. The enactment of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), commonly referred to as "The Act," was introduce for a clearer regime.

The court will need to determine whether an individual can be discharged under section 14 of the act is outlined in section 12 of the legislation. It consists of a two-part test, often referred to as a "Two-Limb" test, structured as follows:

FIRST LIMB

Mental Health Impairment

Defined by section 4(1) of the act, a person has a mental health impairment if:

• The person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory

• The disturbance would be regarded as significant for clinical diagnostic purposes

• The disturbance impairs the emotional wellbeing, judgement or behaviour of the person

Examples of mental health impairment may arise from any of the following disorders are as follows:

• An anxiety disorder

• An affective disorder including clinical depression and bipolar disorder

• A psychotic disorder

• A substance induced mental disorder that is not temporary

Cognitive Impairment

Defined by section 5(1) of the act, a person has a cognitive impairment if:

• The person has ongoing impairment in adaptive functioning

• The person has an ongoing impairment in comprehension, reason, judgement, learning or memory

• The impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from a condition set out in subsection 2 or for other reasons

Examples of cognitive impairment may arise from any of the following conditions are as follows:

• Intellectual disability

• Borderline intellectual functioning

• Dementia

• An acquired brain injury

• Drug or alcohol-related brain damage, including foetal alcohol spectrum disorder

• Autism spectrum disorder

These impairment could be demonstrated to have taken place either during the time of the offence or at the time of the hearing.

SECOND LIMB

The second limb involves determining whether it is more appropriate to divert the you to the mental health jurisdiction as oppose to dealing with you according to the law. The factors the court may consider are as follows:

• The nature, seriousness and circumstances of the alleged offending

• Any relevant change to your circumstances since the alleged offending

• Your criminal history or lack thereof

• Whether you have previously received an order under the section or an equivalent section

• Whether a treatment plan or support plan has been prepared in relation to you

• Whether it is in the community’s interest to divert you away from the criminal justice system and into treatment