In 2022, the AIHW reported that 51% of individuals entering prisons had mental health conditions at some point in their lives. Moreover, estimates show that 15-30% of people in custody have intellectual or cognitive impairments, according to the Office of the Inspector of Custodial Services. Recognising these conditions, Section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) [‘the Act’] offers a pathway to divert individuals from punishment to treatment. When successful, a Section 14 application allows a defendant to avoid a conviction while entering a mental health treatment plan.
This article outlines the key aspects of Section 14 applications, including eligibility criteria, the application process, and treatment requirements.
What is a Section 14 Application?
A Section 14 application allows the court to dismiss charges for individuals with mental health or cognitive impairments:
- without any conditions; or
- They may be placed under the care of a responsible person; or
- They commit themselves to assessment and treatment of their condition.
However, an order to dismiss a charge under these provisions does not mean a conviction.
The Purpose of Section 14
This legislation serves several important purposes:
- Recognising the role of mental health: It acknowledges that punishing someone for behaviour influenced by a mental health condition may not serve justice or society’s interests.
- Providing access to treatment: Defendants receive the mental health care they need while still being held accountable.
- Reducing reoffending: Addressing the root causes of criminal behaviour through treatment lowers the risk of future offending.
Considerations for the Magistrate in Making a Decision
When making a Section 14 order, a Magistrate may consider:
- The nature of the defendant’s mental health or cognitive impairment.
- The seriousness and circumstances of the alleged offence.
- The available sentencing options if the defendant is found guilty.
- Any changes in the defendant’s circumstances since the offence occurred.
- The defendant’s criminal history.
- Whether the defendant has been subject to a similar order before.
- Whether a treatment or support plan is in place for the defendant.
- The potential risk to the safety of the defendant, victims, or the public.
- Any other relevant factors.
Eligibility: Who Can Apply?
To qualify for a Section 14 order, a defendant must demonstrate they have a:
- mental health impairment;
- cognitive impairment; or
- both.
These terms have specific legal definitions under the Act.
Mental Health Impairment Requirements
A person must show they experience a significant disturbance that affects their daily functioning. This may manifest as:
- Disordered thinking
- Severe mood disturbances
- Problems with decision-making
- Distorted perceptions of reality
- Memory issues
Importantly, this disturbance must be clinically diagnosed and significantly impact how the person manages their emotions, makes decisions, or behaves.
For example, a person with schizophrenia experiencing delusions may misinterpret situations and act irrationally, while someone with major depression may lack the mental clarity to make sound decisions.
Cognitive Impairment Criteria
Cognitive impairment refers to persistent difficulties with fundamental mental functions, such as:
- Understanding information
- Reasoning and problem-solving
- Learning and memory
- Decision-making and impulse control
According to Section 5 of the Act, these cognitive impairments may be caused by:
- Intellectual disability
- Borderline intellectual functioning
- Dementia
- Acquired brain injury
- Drug or alcohol-related brain damage, including foetal alcohol spectrum disorder
- Autism spectrum disorder.
To illustrate, a person with an intellectual disability may struggle to comprehend the consequences of their actions, while an individual with a traumatic brain injury may exhibit impulsive behaviour.
The Application Process: A Step-by-Step Guide
Making a Section 14 application requires careful preparation and strong evidence. The court applies a two-limb test when assessing applications.
The First Limb – Establishing Eligibility
The court must be satisfied that the defendant has a qualifying condition. This typically requires expert medical evidence, such as a psychiatrist’s or psychologist’s report detailing:
- The nature and severity of the impairment
- How it affects the person’s behaviour and decision-making
- The link between the impairment and the alleged offence
- Available treatment options and their effectiveness
- The person’s willingness to engage in treatment
The Second Limb – Proving Appropriateness
Even if the defendant qualifies, the court must consider whether diversion into treatment is more appropriate than proceeding with prosecution. This involves assessing:
- The seriousness of the offence: More severe offences may be less likely to qualify.
- The defendant’s criminal history: Previous offences and compliance with past court orders are considered.
- The quality of the proposed treatment plan: The court needs assurance that the plan is comprehensive and practical.
- Community safety concerns: The risk of reoffending and harm to others is a crucial factor.
- The likelihood of successful rehabilitation: The court assesses whether treatment will reduce the chances of future offending.
A well-prepared Section 14 application should address all these factors to maximise the chances of success. Our Criminal Lawyers Central Coast will ensure all requirements are met.
Treatment Plans and Court Monitoring
A successful Section 14 application requires a structured treatment plan. The plan should include:
Comprehensive Treatment Framework
- Regular appointments with mental health professionals
- Evidence-based therapeutic interventions
- Medication management where required
- Support services for housing, substance use, or employment
- Clear goals and measurable progress indicators
Court Monitoring and Compliance
The court retains oversight for up to 12 months, during which:
- Treatment providers submit progress reports
- Any breaches must be reported
- The defendant must show ongoing commitment to treatment
- The court may review the plan to ensure continued suitability
Breach of a Section 14 Order
If a defendant fails to comply with their treatment plan, the court may take several actions:
Immediate Consequences
- Requiring the person to appear in court to explain the breach
- Issuing an arrest warrant for non-compliance
- Modifying the treatment plan to improve compliance
Serious Breaches
If a person repeatedly breaches their Section 14 order, the court may:
- Revoke the order
- Reinstate the original criminal charges
- Proceed with prosecution, potentially resulting in a conviction and penalties
This highlights the importance of adherence to the treatment plan and maintaining regular engagement with mental health professionals.
The Evolution from Section 32
Section 14 replaced the previous Section 32 of the now-repealed Mental Health (Forensic Provisions) Act 1990 (NSW). This change brought key improvements:
Longer Monitoring Period
- Extended from 6 to 12 months
- Greater oversight of treatment compliance
- More time for meaningful rehabilitation
Clearer Criteria
- More structured definitions of mental health and cognitive impairments
- Improved guidance for magistrates
- Enhanced emphasis on community safety
These updates have made Section 14 applications more structured and effective in balancing public safety with the needs of individuals with impairments.
Final Thoughts
Section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) represents a compassionate and effective approach to handling mental health issues in the criminal justice system. It allows eligible individuals to focus on rehabilitation rather than punishment, ultimately benefiting both the person and society.
However, navigating a Section 14 application requires legal expertise and thorough preparation. At Felicio Law Firm, our experienced Central Coast Criminal Lawyers provide:
- Comprehensive eligibility assessments
- Access to qualified mental health professionals
- Expert application preparation and strong court advocacy
- Ongoing support throughout the legal process
If you or a loved one is considering making a Section 14 application, contact us immediately to ensure the best possible outcome.
