Mental Health and Cognitive Impairment Diversions in NSW

It is not uncommon for persons who have some form of mental health or cognitive impairment to come into contact with the criminal justice system. In many cases there is a clear correlation between a person’s mental health or cognitive impairment and this being either a causal or significantly contributory factor in one’s involvement in a criminal offence.

What is a Mental Health Diversionary Scheme in NSW?

In certain circumstances, the law in NSW allows a court to divert persons suffering from mental health and cognitive conditions away from criminal punishment as a means of providing a different legal response to those who commit crimes wilfully. Mental health and cognitive impairment diversionary schemes focus on a shift from criminality and criminal punishment to recognition of mental health and cognitive impairment and ultimately diversionary schemes to promote a focus on treatment, care, rehabilitation and support. Such diversionary schemes available for matters dealt with in the Local Court of NSW. Mental Health and cognitive impairment diversionary schemes balance the needs the victims and the safety of the community with the mental health of an offender.

The Old Law. Section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW).

Prior to 27 March 2021, the long-standing legislation giving rise to mental health diversionary schemes in the Local Court of NSW was the Mental Health (Forensic Provisions) Act 1990 (NSW). Perhaps the most relevant section under the old Act was Section 32, which outlined how a person was eligible to make a diversionary application and what criteria must be met for such an application to be successful. It is important to note that the new legislation applies to criminal proceedings commenced after 27 March 2021. The old legislation still applies for any proceedings commenced before that date.

The test under the old Section 32 of the Mental Health (Forensic Provisions) Act 1990 ultimately contained a two-limb test.

The First Limb

(1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:

(a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):

(i) cognitively impaired, or

(ii) suffering from mental illness, or

(iii) suffering from a mental condition for which treatment is available in a mental health facility,

but is not a mentally ill person, and

The Second Limb

(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law,

The first test under section 32(1)(a) is an assessment as to whether the defendant is or was at the time of the alleged offence suffering from a mental illness or condition. This test was able to be satisfied by a magistrate having regard to an expert assessment and report from a psychologist or psychiatrist. The second test requires a Magistrate to exercise his or her discretion as to whether it is more appropriate to deal with the matter by diverting a defendant in accordance with section 32 of the Act or to otherwise deal with the defendant according to law.

The exercise of the Magistrate’s direction under section 32(1)(b) of the Act has been held by the courts to be a broad one. Matters such as the seriousness of the offence/s, the range of outcomes that would be appropriate in the event of conviction, the realistically available sentencing options in the event the offence is proved, the effect of any orders that might be made under section 32, that orders pursuant to the Act can only last for six months, the proposed treatment plan and principles of deterrence.

Should both limbs under section 32 be satisfied, the Magistrate can consider what appropriate orders for treatment can be made in respect of the defendant.

Treatment orders were limited to a period of 6 months from the date of the order meaning that the Court had limited scope to oversee treatment for longer periods of time, making a potential discharge of a defendant under Section 32 undesirable for Magistrates in many cases. Magistrates, in the exercise of their discretion often held the view that dealing with defendants pursuant to the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) enabled them to place defendants on supervised ‘bonds’ to be of good behaviour containing conditions to continue treatment with their mental health professional for far longer periods than the 6 months provided for in the Mental Health (Forensic Provisions) Act 1990 (NSW).

The New Law. The Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

Coming into law on 27 March 2021, the New South Wales Government enacted the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, replacing the Mental Health (Forensic Provisions) Act 1990.

Under the new law, the equivalent section is now Section 12. Section 12(1) replicates the first limb as outlined above, with key language being that a Magistrate ‘may’ make an order under this division, preserving the wide Discretion a Magistrate has when dealing with these matters. Section 12(2) replicates the second limb as outlined above, whereby the main test that the Court must apply is whether it is more appropriate to deal with the matter by way of Section 12 or by way of law. The Magistrate must consider certain areas which are outlined in Section 15 of the Act but is not limited to these areas when making a determination.

The Act has also allowed for an extension of the enforcement period from 6 months to 12 months, and this can be extended. This is a hugely positive change which will allow for longer scope for the courts to oversee treatment and ensure compliance with orders. It can add more force to any application made under this section.

Ultimately, the consideration of these applications is ultimately whether a mental health diversion to treatment would be in the best interests of both the offender and the community in general. If the offender benefits greatly from treatment and this treatment will greatly reduce the risk of harm to the community, it is arguable that it is in the interests of every stakeholder involved for that offender to be diverted to a treatment-based order.

Can I be Eligible for a Mental Health Diversion in NSW? Practical Considerations.

The intention of the law pertaining to mental health diversions in NSW is that courts may deal with people with mental health or cognitive impairments accused of low-level offending differently, contingent on that person seeking treatment and support, reducing the likelihood of reoffending. Considerations as to whether such an application is appropriately available, based on credible and comprehensive medical evidence need to be made having regard to the circumstances of each particular case. It is therefore important that the issue of whether an application for a mental health or cognitive impairment diversion be made is considered by an experienced criminal defence lawyer.

The content contained within this guide is expressed as a general guide as to this area of law and is not intended to contain legal advice specific to an individual’s case. If you have been charged with a criminal offence and require legal advice, do not hesitate to contact Australian Lawyers and Advocates to discuss your matter with one of our lawyers.


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