Being charged with an offence is stressful for anyone. It is harder again when the person charged is living with a mental health condition or a cognitive impairment, and the family around them is trying to work out whether the ordinary criminal process is really the right answer. In those situations, the law recognises that treatment and support may achieve more than punishment.
There are lots of legal terms that become colloquialisms that you might have heard if you have ever come into contact with the Local Court. A “section 10” is a common one. Section 14 applications are another topic we often get questions about.
What Is a Section 14 Application?
A “section 14 application” is an application made under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). Previously known as a “section 32 application”, it allows a magistrate to deal with an accused person through appropriate treatment, support or supervision instead of the ordinary criminal process.
The application may be available where the accused has a mental health impairment or cognitive impairment. This may include certain psychiatric conditions, intellectual disability, autism or dementia, for example. However, the existence of an impairment does not automatically mean that an application will succeed. The magistrate must decide whether making an order is more appropriate than dealing with the charge in the usual way.
What Orders Can the Court Make?
If the application is granted, the magistrate may dismiss the charge and discharge the accused into the care of a responsible person, require the accused to undergo assessment, treatment or support, or discharge the accused without conditions.
The order is not a finding of guilt. If a condition is breached within 12 months, however, the accused may be brought back before the court and the criminal proceedings may resume. That makes the workability of any proposed conditions just as important as the application itself.
What Evidence Does the Court Need?
The court will usually require a report from a suitably qualified professional, such as a psychiatrist or psychologist. The report should explain the person’s diagnosis and symptoms, whether the condition satisfies the legal definition of a mental health or cognitive impairment, how it may relate to the alleged offending and what treatment or support is recommended.
A practical treatment plan is particularly important. Medical records, disability support plans, information from carers or family members and confirmation from proposed treatment providers may also assist.
How the Process Usually Works
The usual process involves obtaining the accused’s medical history, arranging an assessment and preparing a workable treatment or support plan. The clinical report and supporting documents are then provided to the prosecution and the court before the application is heard.
At the hearing, submissions are made about why diversion under section 14 is appropriate. The magistrate may consider the seriousness of the alleged offence, the person’s criminal history, public safety, prospects of treatment and any connection between the impairment and the alleged conduct.
Why Preparation Matters
A section 14 application is not simply a matter of raising a diagnosis in court. The strength of an application usually comes down to how clearly the material connects the impairment to the alleged conduct, and how realistic the proposed plan is for the person and the people supporting them. Assessments and reports also take time to arrange, so the earlier the groundwork begins, the better prepared the application tends to be.
Every matter turns on its own facts, and whether a section 14 application is the right approach depends on the charge, the person’s circumstances and the evidence available.
If you or a family member has been charged and a mental health or cognitive impairment may be relevant, contact our experienced team to discuss your situation.
