2 / 8 / 2021

Section 32: Mental Health Act

Changes to Applications Under Section 12

Criminal proceedings concerning a client who is mentally or cognitively impaired can be challenging for all parties involved, particularly when a person is charged with serious offences.

In summary proceedings (i.e. proceedings being finalised in the Local Court), if a person is mentally or cognitively impaired, they can be diverted under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the new Act), formally known as a section 32 order under the Mental Health (Forensic Provisions) Act 1990 (NSW) (the old Act). The new Act came into effect on 23 March 2021 replacing the old Act, and applies to charges laid on or after 23 March 2021.

Section 12 of the new Act provides that a Magistrate may, if it appears that the defendant has (or had at the time of the alleged commission of the offence) a mental health impairment or a cognitive impairment, adjourn the proceedings or dismiss a charge and discharge a defendant, conditionally or unconditionally, without the need for a finding to be made that the charge was proven or otherwise.

An application can be brought at any time during the course of the proceedings before a Magistrate, and there is no requirement for a defendant to enter a plea before the relevant sections can be enlivened.

The new Act introduces some important changes to the way the old section 32 application used to operate and apply.  These changes include:

  1. The introduction of a statutory definition for ‘mental health impairment’ and ‘cognitive impairment’;
  2. The introduction of a non-exhaustive list of considerations for a Magistrate to take into account when performing the ‘balancing exercise’ and deciding whether it is more appropriate to divert the defendant; and
  3. Extending the period of time of enforceability of orders from 6 months to 12 months.

Given the prevalence of mental health issues in the community and the adverse consequences which often flow from a conviction for a criminal charge, it is important to be aware of underlying factors which may affect a person and to be able to identify defendants who may benefit from the diversionary scheme. Discharge orders represent a practical and valuable way to divert a defendant into treatment. For this reason, section 12 applications have the real potential to produce positive outcomes both for the defendant and for the wider community and should be pursued in appropriate cases.

Carol Younes, Partner