Mental Health in Criminal Law
The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) aims to promote community safety, rehabilitate mentally impaired individuals, and displace mentally disabled people away from the criminal justice system.
There are three main conditions that arise in relation to mental capacity during criminal proceedings:
whether the person charged is fit to stand trial;
whether an accused person successfully raises the defence of mental health or cognitive impairment; or
whether the mental health or a cognitive impairment may be a significant factor in sentencing by dismissing charges or reducing moral culpability.
If you have been convicted of a crime and are mentally or cognitively impaired, our experienced team of criminal defence lawyers can help you achieve the most optimal outcome given your circumstances.
Below is information about mental health and cognitive impairment. If you need advice from an experienced defence lawyer, make an enquiry on our website or call us today on (02) 9060 9799.
Mental Health Applications in the Local Court
You can apply for a Section 14 application to dismiss any charges made against you if you are suffering from a mental health or cognitive impairment.
A Magistrate may order to dismiss a charge under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). This means that if you are suffering from a mental health or cognitive impairment, you can avoid a criminal record and a finding that you were guilty of the charges brought against you. This allows you to move forward with your life, conviction-free.
If your section 14 application is successful, the Magistrate will discharge the defendant:
into the care of a responsible person conditionally or unconditionally, or
on the condition that you attend on a person or at a place specified by the Magistrate for assessment, treatment, or the provision of support for your treatment, or
unconditionally.
A responsible person may be a health professional such as a treating psychologist, psychiatrist, counsellor or, in some cases, a general practitioner, parent or family member.
The order will normally come with a condition that you comply with a mental health treatment or support plan.
In the case that you are discharged on the condition of fulfilling a mental health treatment or support plan, these may contain the following requirements:
seeing your general practitioner and take prescribed medication,
consulting a treating psychologist on a regular basis, and/or
engaging in therapy, such as cognitive behavioural therapy.
A support or mental health treatment plan can last for up to 12 months.
Your case can also be adjourned for your mental health treatment and support plan to enable:
you to be assessed or diagnosed,
your mental health treatment or support plan to be developed, or
a responsible person to be identified
A magistrate may adjourn your case for any other reason he or she considers appropriate in the circumstances. They can make interim orders when adjourning your case, which are orders that last until the next court date.
It is imperative that you comply with your treatment plan since non-compliance can mean you are brought back before the court, which can expose you to the prospects of a criminal record and other penalties.
If you have been charged with an offence and believe that you suffer from a mental health or cognitive impairment it is important to get into contact with a criminal defence lawyer. Our team of experienced criminal lawyers can assist you with understanding your options and applying for a dismissal of charges under section 14.