Mental Health Application

What is a
Mental Health Application

A mental health application is a way to address criminal charges when a defendant has a mental or cognitive impairment. A mental health application is available in criminal proceedings or indictable offences before the Court or a magistrate. The application is made when the defendant’s mental health or cognitive impairment is relevant to the alleged offence. If successful, the court may order the defendant to undertake treatment or support plan, potentially for up to 12 months, or the charges may be dismissed unconditionally.

Having an experienced criminal lawyer is essential when assessing eligibility and preparing for a mental health application. These applications require careful legal and clinical consideration, including the need to demonstrate that the accused was suffering from a mental health condition or cognitive impairment, and that diversion away from the criminal justice system is appropriate. An experienced lawyer will work closely with mental health professionals to obtain comprehensive reports, ensure all eligibility criteria are met, and present a compelling case to the court. They understand how to navigate the complex legal framework, anticipate potential objections from the prosecution, and frame submissions that align with the court’s expectations.

Advantages of a
Mental Health Application

A mental health application in Court, under Section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), offers several key advantages for eligible individuals:

  • Avoiding a Criminal Conviction - One of the most significant benefits is that, if the application is successful, the charge may be dismissed without a conviction being recorded. This can help protect the individual’s criminal record and future employment prospects.

  • Diversion from the Criminal Justice System - The application allows for the person to be diverted away from the traditional criminal process and instead directed toward receiving appropriate mental health treatment and support.

  • Focus on Rehabilitation Over Punishment - The court recognises the role mental health plays in offending behaviour and prioritises treatment and rehabilitation rather than punitive outcomes, which can lead to better long-term results for both the individual and the community.

  • Demonstrating Insight and Proactivity - Making a mental health application shows the court that the individual acknowledges their condition and is taking proactive steps to address it, which may lead to more lenient outcomes, even if the application is unsuccessful.

The Application of
Section 14

The first step is to determine whether the individual has a mental health impairment or cognitive impairment as defined by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. This typically involves obtaining a comprehensive assessment from a qualified mental health professional, such as a psychologist or psychiatrist.

A mental health impairment is defined as a condition that:

  • Affects a person’s mental functioning

  • Is a clinically recognisable mental illness, such as depression, anxiety, bipolar disorder, schizophrenia, or other psychiatric conditions

  • Is not solely caused by the temporary effects of intoxication, whether by alcohol or drugs

A cognitive impairment is defined as a condition that affects a person's cognitive functioning. This impairment may arise from various conditions, including intellectual disability, borderline intellectual functioning, dementia, acquired brain injury, or other reasons. The Act specifies that a person has a cognitive impairment if they have a condition that:

  • Affects their capacity for judgment, memory, or reasoning; and

  • Is not solely attributable to the temporary effect of ingesting a substance or a substance use disorder

To be eligible, a detailed mental health treatment or support plan must be developed. This plan should outline the proposed interventions, therapies, or supports the individual will engage with, and it must be prepared in collaboration with the treating health professional. The applicant’s defence lawyer will prepare and file the Section 14 application with the court. This includes submitting the treatment plan along with any supporting documentation such as medical reports and written submissions. If the Section 14 application is successful, the court may impose conditions the individual must comply with. Failure to adhere to these conditions can result in the individual being brought back before the court, where the original charges may be reinstated and dealt with according to law.

What is a
Treatment or Support Plan?

A treatment or support plan is a structured document that outlines the therapeutic, medical, or social supports an individual will engage with to manage their mental health or cognitive impairment. This plan is a critical component of the application, as it demonstrates to the court that the person is addressing the underlying issues contributing to their offending behaviour.

Key elements of this plan may include:

Condition Management

  • Details of how the condition will be managed moving forward

Health Practitioner Involvement

  • Ongoing treatment by a GP, psychologist or psychiatrist

  • Regular appointments, medication reviews, and mental health care plans

Therapeutic Interventions

  • Engagement in therapy

  • Participation in drug or alcohol rehabilitations, if relevant

Support Services

  • Involvement with mental health support services such as community outreach programs, case workers, NDIS

  • Assistance with housing, employment, or daily functioning if needed

Breach of
Section 14 Order

A breach of a Section 14 order under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) occurs when an individual fails to comply with the conditions imposed by the court as part of their diversion from the criminal justice system. These conditions may include attending treatment appointments, complying with a support plan or engaging with a mental health service provider.

If a breach is reported—either by the responsible person or a service provider—the individual may be required to return to court. The possible consequences include:

  • No Action: If the breach is minor or excusable, the court may take no action and allow the order to continue.

  • Variation of Conditions: The court may amend the existing conditions to better suit the individual’s needs or ensure future compliance.

  • Revocation of the Section 14 Order: In serious or repeated breaches, the court may revoke the order altogether. This means the person loses the benefit of diversion and the original charge is reinstated to be dealt with through the regular criminal process.

If a breach occurs, having an experienced criminal defence lawyer is necessary. They can explain the context of the breach, present evidence of ongoing treatment or recovery, and argue for continued diversion rather than prosecution.