From 27 March 2021, there have been some important changes to how the local court deals with defendants with mental health issues. New legislation now allows defendants with a cognitive or mental health impairment to be diverted from the usual forms of punishment into the care of mental health services. Here are some of the important things to know when making a section 14 application.   

Who does it apply to?

Defendants with a cognitive or mental health impairment.

A person with a cognitive impairment:

1. Has an ongoing impairment in adaptive functioning, and
2. Has an ongoing impairment in comprehension, reason, judgement, learning or memory, and
3. That impairment is a result of damage, dysfunction, developmental delay or deterioration of the brain.

This may be caused by:

• Intellectual disability
• Borderline Intellectual Functioning
• Dementia
• An acquired brain injury

A person with a mental health impairment:

1. Temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
2. The disturbance is significant for clinical diagnostic purposes, and
3. The disturbance affects their emotional wellbeing, judgment or behaviour.

This may be caused by:

• Anxiety disorder
• Affective disorder
• Psychotic disorder
• Substance-induced mental disorder that is not temporary

But cannot be solely caused by:

• The temporary effect of ingesting a substance, or
• A substance use disorder

Ultimately, whether a person has a cognitive or mental health impairment will be determined by a psychologist or psychiatrist.

What will the magistrate consider?

The question for the magistrate is whether it is more appropriate to deal with the defendant by diverting them to health services or according to law.

The factors they consider include:

• The nature of the cognitive or mental health impairment
• The nature, seriousness and circumstances of the alleged offence
• The suitability of sentencing options available if found guilty
• Changes in the circumstances of the defendant since the alleged offence
• Criminal history
• Previous section 32 or section 14 applications
• A treatment or support plan
• Safety of the defendant, victim and public.

What orders can the magistrate make?

The magistrate can order the defendant to:

• Be placed into the care of a responsible person with or without conditions
• Attend a psychologist, psychiatrist or mental health service for assessment or treatment
• Be discharged unconditionally

The magistrate may also adjourn your matter to a later date to allow time for treatment, diagnosis or assessment.

What happens if I fail to comply?

If the magistrate suspects you have failed to comply with your orders, they may bring you before the court within 12 months of your section 14 application. The court might then impose a sentence as if you had not been previously charged.  

Photo by Chinnapong