A Section 14 Application refers to an order made under section 14 of the Mental Health and Cognitive Impairment Forensics Provisions Act 2020. A successful application under this section enables the Local Court to divert defendants away from the criminal justice system where appropriate.
When is a Section 14 available?
Section 14 orders are available when you have been charged with a summary offence, or an indictable offence that is being dealt with summarily in the Local Court. In addition, a section 14 application can be made during a conviction appeal in the District Court.
The Order can be made where the Judge is satisfied that the defendant has, or at the time of the alleged offending, had a mental health or cognitive impairment.
Usually, this is demonstrated through a report from a forensic psychologist or forensic psychiatrist, as well as your medical and mental health treatment history.
A section 14 application can be made at any time, meaning that you do not have to wait until your matter proceeds to hearing to make the application.
Under the legislation, a person has a mental health impairment if:
- The person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
- the disturbance would be regarded as significant for clinical diagnostic purposes, and
- the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.
This can arise from an anxiety disorder, an affective disorder such as clinical depression and bipolar depression, a psychotic disorder or a substance induced mental disorder that is not temporary.
However, a mental health impairment is not limited to these diagnoses, and may arise for other reasons.
A mental health impairment will not be recognised where the impairment is caused solely by the temporary effect of ingesting a substance or a substance use disorder.
A cognitive impairment is recognised in the legislation as:
- An ongoing impairment in adaptive functioning, and
- An ongoing impairment in comprehension, reason, judgment, learning or memory, and
- The impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from a condition set out in subsection (2) or for other reasons.
Subsection (2) lists the following conditions:
- Intellectual disability,
- Borderline intellectual functioning,
- Dementia,
- An acquired brain injury,
- Drug or alcohol related brain damage, including foetal alcohol spectrum disorder,
- Autism spectrum disorder.
However, subsection (2) does not limit the application of the section to these conditions.
What does the Court consider?
Ultimately, the Judge has to be satisfied that diverting the defendant away from the criminal justice system is more appropriate than dealing with the defendant at law.
In making this decision, the Judge will consider if the defendant will receive the appropriate care and follow up to ensure that they will not re-offend. This is why usually the application is accompanied by a psychologist or psychiatrist report and detailed treatment plan.
In making their determination, the Judge will usually consider:
- The nature of the apparent mental health or cognitive impairment;
- The nature, seriousness and circumstances of the alleged offence;
- The suitability of sentencing options if found guilty;
- Criminal history;
- Whether the defendant has had a previous successful Section 14 Application;
- Whether a treatment plan has been prepared, and the appropriateness of this plan;
- Whether the defendant is likely to endanger their own safety or the safety of others.
What is a treatment plan?
A treatment plan is developed by a mental health professional, such as a psychologist or psychiatrist.
It can include requirements such as:
- Taking prescription medication;
- Attending sessions with a psychologist or psychiatrist, and the regularity of those appointments;
- Complying with all reasonable directions from medical practitioners;
- Engage in and complete rehabilitation programs.
What happens if I am successful?
If the Judge is satisfied that the defendant has a mental health or cognitive impairment, they can dismiss the charge and:
- Discharge the defendant into the care of a responsible person;
- Discharge the defendant on the condition that he or she attend upon a psychologist or counsellor for assessment, treatment or support; or
- Discharge the defendant unconditionally.
A responsible person can include a psychologist, psychiatrist or a general practitioner. It is important to have an undertaking from the proposed responsible person before making the application in court. The undertaking must confirm that the responsible person is aware of their duties if a section 14 order is made.
Ultimately, the offence will be withdrawn and dismissed, and no conviction will be recorded.
However, you must follow the treatment plan to avoid going back to Court. If you fail to comply with the conditions ordered, you can be ordered to re-appear before the judge, have a warrant issued for your arrest or be dealt with under criminal law instead.
If you are not successful, this will have no bearing on the overall case. You can still maintain a plea of guilty or not guilty. Mental health can still be a consideration in other aspects of your matter, especially at sentencing.
At Arthur Law, we have experience in making Section 14 Applications.
If you have been charged with an offence and need legal advice, contact us today for a free Ask Arthur consultation.
