What You Need to Know about Mental Health Defences in NSW

Have you been charged with a crime? Your mental health might make a difference.

Can mental health affect the outcome of my criminal case?

In NSW, the law recognises that mental health or cognitive impairment can affect a person’s ability to understand their actions or control their behaviour. When this happens, the courts have the power to focus on treatment instead of punishment.

Under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, a key mechanism for this is Section 14, which allows a person charged with a criminal offence to be diverted away from the court system and into treatment or support.

Securing the right legal advice early is essential. Mistakes in this area can lead to missed opportunities for diversion and adverse court outcomes. By engaging Baker Love Lawyers, clients receive tailored guidance specific to their circumstances, meticulous attention to detail, and the advocacy required to present the strongest possible case to the court.

What is a Section 14 order?

Section 14 replaced the former Section 32 orders. It allows a magistrate to dismiss charges and release a defendant into the care of a responsible person or on conditions that they undertake a mental health treatment plan. It applies to summary offences and some indictable offences heard in the Local or Children’s Court.

Who qualifies?

A Section 14 order can be considered if a person is found to have a mental health impairment (such as depression, bipolar disorder, or psychosis) or a cognitive impairment (such as intellectual disability, brain injury, or dementia).

How does It work?

The application is usually made by your lawyer. The magistrate has full discretion to decide whether diversion is appropriate, considering factors like:

The seriousness of the offence
The defendant’s mental health and treatment plan
The safety of the community

A psychologist or psychiatrist report outlining a care or treatment plan is essential. Without this, the application is unlikely to succeed.

What happens next?

If granted, the person must comply with their treatment or support plan. Failure to do so can result in being brought back to court within 12 months to face the original charges.

Why it matters?

Section 14 recognises that some offenders need care, not punishment. It helps balance the needs of the community, the victims, and the individual’s mental health recovery.

Navigating the criminal law system when mental health or cognitive impairment is involved presents significant legal and personal challenges. A properly prepared Section 14 application can make a crucial difference to the outcome of a case, potentially enabling a person to access treatment and support, rather than face punishment and/or a criminal record.

Baker Love Lawyers possesses significant experience in assisting clients with mental health defences under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. The preparation of a successful Section 14 application involves careful legal analysis, and the drafting of persuasive submissions, including the coordination of expert psychiatric or psychological reports. The Baker Love team works closely with clients and medical professionals to ensuring that every relevant factor is expertly addressed and advanced on the client’s behalf.

If you or someone you care for is facing criminal charges and may be eligible for a Section 14 diversion, seeking advice from Baker Love Lawyers is an important step towards protecting legal rights, securing appropriate support or treatment, and achieving the best possible result given the complexities of the law and each individual’s circumstances.