What is a section 14 application?
What is a section 14 application?
What is a section 14 application?
Under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, the Local Court may divert a person charged with an offence away from the criminal justice system and its usual forms of punishment, into mental health care in circumstances where that person is suffering from a mental health impairment or a cognitive impairment.
Previously known as a section 32 application, a successful section 14 application means that the person charged with an offence is discharged, the charge is dismissed and no conviction is recorded. The order made by the court may be conditional or unconditional.
Let’s look at the key parts of a successful section 14 application.
What is a section 14 application?
A magistrate may make an order under section 14 if it appears to the magistrate that:
The defendant has (or had at the time of the alleged offence) a mental health impairment or cognitive impairment, or both; and
That on an outline of the facts alleged and any other evidence the magistrate thinks is relevant, it would be more appropriate to deal with the defendant in this way rather than in accordance with law.
What this means in practice is:
Does the person have a mental health or cognitive impairment?
After reading the facts alleged, is it more appropriate to divert the person into mental health care, or to deal with the person in the usual way, either by sentence or after defended hearing?
Who can make a section 14 application?
A person who has been charged with an offence which is being dealt with in the Local Court, who has a mental health impairment or a cognitive impairment can make a section 14 application.
A mental health impairment is where a person:
Has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
The disturbance is significant for clinical diagnostic purposes, and
The disturbance impairs the emotional wellbeing, judgement or behaviour of the person.
It can be caused by:
An anxiety disorder
An affective disorder including clinical depression and bipolar disorder
A psychotic disorder
A substance induced mental disorder that is not temporary.
A cognitive impairment is where a person:
Has an ongoing impairment in adaptive functioning, and
Has an ongoing impairment in comprehension, reason, judgement, learning or memory, and
The impairments result from damage or dysfunction, development delay or deterioration of the person’s brain or mind.
The impairment may be caused by:
Intellectual disability
Dementia
An acquired brain injury
Autism spectrum disorder.
What does the magistrate consider when deciding a section 14 application?
Firstly, the magistrate needs to be satisfied that the person has (or had at the time of the alleged offence) a mental health impairment or a cognitive impairment. The evidence that the magistrate will ordinarily rely on is a report from a forensic psychologist or forensic psychiatrist or the person’s treating clinical psychologist or psychiatrist. This report will typically include a treatment plan for the future.
The legislation sets out the other considerations the magistrate may have when determining whether it is more appropriate to deal with the defendant by way of diversion into health care.
Those considerations are:
The nature of the mental health impairment or cognitive impairment
The nature, seriousness and circumstances of the alleged offence
The suitability of the sentencing options if the defendant is found guilty of the offence
Changes in the defendant’s circumstances since the alleged offence
The defendant’s criminal history
If there have been previous section 14 or section 32 applications
The treatment or support plan has been prepared in relation to the defendant and the content of that plan
The safety of the defendant, a victim and the public.
What orders will the magistrate make if successful?
The magistrate can make an order dismissing the charge and discharging the person:
Into the care of a responsible person (often the treating doctor or psychologist), unconditionally, or subject to conditions, or
On condition that the person attends a place or on a person for assessment, treatment or support, or
Unconditionally.
What happens if I don’t comply with the order?
If a magistrate suspects that you are not complying with the order that he or she made in the 12 months after making it, the magistrate can order you to appear before the court to be dealt with according to law – that is, as if the section 14 application had not been granted.
A treatment provider may report a failure to comply with a condition of the section 14 order.
