What is a ‘section 14’?
A Section 14 refers to an order made under s. 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).It enables the Local Court to divert defendants with certain psychological or cognitive conditions out of the criminal justice system.
A defendant granted relief pursuant to section 14 is not convicted, though a record is made that they were dealt with in this way.
A section 14 order was previously referred to as a section 32 order under the repealed Mental Health (Forensic Provisions) Act 1990 (NSW).
When can a section 14 order be made?
Section 14 orders are only available in summary criminal proceedings or indictable offences triable summarily before a magistrate.
A magistrate can make an order under section 14 if it appears that the defendant has, or had at the time of the alleged offence, a mental health impairment, a cognitive impairment, or both.
A person has a mental health impairment if they have a temporary or ongoing disturbance of thought, mood or perception, which is clinically significant and impairs the emotional wellbeing, judgment or behaviour of the person. This can include:
- An anxiety disorder.
- An affective disorder such as depression or bipolar disorder.
- A psychotic disorder.
- A substance induced mental disorder that is not temporary.
It does not include a mental health impairment caused solely by the temporary effect of ingesting a substance, or a substance use disorder.
A person has a cognitive impairment if they have an ongoing impairment in adaptive functioning, comprehension, reason, judgment, learning or memory, and the impairment results from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind. A cognitive impairment may arise from any of the following conditions:
- Intellectual disability.
- Borderline intellectual functioning.
- Dementia.
- An acquired brain injury.
- Drug or alcohol-related brain damage.
- Autism spectrum disorder.
What orders can a magistrate make?
The magistrate can dismiss the charge/s and:
- Discharge the defendant into the care of a responsible person,
- Discharge the defendant on the condition that he or she attend upon a psychologist or counsellor for assessment, treatment or support, or
- Discharge the defendant unconditionally.
If conditions are attached to the order and the defendant breaches any of these conditions within 12 months of the order being made, the defendant may be brought back before the court. The magistrate may deal with the charge as if the defendant had not been discharged.
Making a section 14 application
A section 14 application is normally raised by the defendant’s lawyer but it can be raised by any party to the proceedings, including the magistrate, at any time during the hearing of the matter. A magistrate may make an order under s. 14 even if the defendant has entered a plea.
Magistrates are unlikely to deal with charges under section 14 unless they are satisfied that the defendant will receive appropriate care and follow-up to ensure that they will not re-offend. For this reason, the application should be supported by a psychiatric or psychological report and a detailed treatment plan.
In deciding whether to make a section 14 order, the magistrate may consider:
- The nature of the defendant’s apparent mental health impairment or cognitive impairment.
- The nature, seriousness and circumstances of the alleged offence.
- The suitability of the sentencing options available if the defendant is found guilty of the offence.
- Relevant changes in the circumstances of the defendant since the alleged commission of the offence.
- The defendant’s criminal history.
- Whether the defendant has previously been the subject of an order under this Act or section 32 of the Mental Health (Forensic Provisions) Act.
- Whether a treatment or support plan has been prepared in relation to the defendant and the content of that plan.
- Whether the defendant is likely to endanger their own safety or the safety of someone else.
Am I eligible for a section 32 order?
Nyman Gibson Miralis can assist you with any type of criminal charges and will advise you of the best way to navigate the court system to achieve the best possible outcome. If you are charged with a criminal offence, whether or not you may be suffering from a mental health condition, you should seek expert legal advice.
Many people are unaware that they suffer from a psychological or psychiatric condition. Some people are aware, but forget to or deliberately do not take medication or continue with treatment. Others are aware that they have a problem, but do not notice the increased effect of the condition when under stress or as a reaction to an event.
The best indicator of eligibility for a section 14 order is the opinion of a psychologist or psychiatrist. An experienced defence lawyer will be able to guide you in seeking assistance and obtaining a report for the consideration of this important question.
Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law.
Contact us if you require assistance.
