The Mental Health Act and Changes to applying for a Section 32 in Court
I have to go to Court.
My friend said I could do a Section 32 Application but it’s got a different name.
What does that mean?
You may have mental health issues which affected you when you were charged. You may have a mental condition, a chronic drug addiction or an addiction to alcohol. You may have PTSD or suffer from other traumas.
This is where the mental health acts may assist you and the Court in deciding how best to deal with your charges and how to find the best way forward for you.
Now, instead of making a s32 application, you make an application for a diversionary order under the new mental health act where no conviction is recorded against you.
This aims to help you in getting out of the criminal justice system and benefit society in general in finding ways to rehabilitate accused people before the Courts.
What are the mental health acts?
The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 commenced on 27 March 2021 which replaced the Mental Health (Forensic Provisions) Act (“MHFPA”).
This Act covers new diversionary provisions applying to matters being dealt with at the Local Court.
These are set out in Part 2 of the Act.
What is different?
The major alterations in the new legislation include:
New definitions;
Section 32 type orders will be in place for 12 months rather than the old 6 months;
A list of factors a Magistrate may consider when deciding whether diversion is appropriate;
What is mental health impairment?
The concept of “mental health impairment” is defined in Section 4 which reads:
For the purposes of this Act, 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.
A mental health impairment may arise from any of the following disorders but may also arise for other reasons--
(a) an anxiety disorder,
(b) an affective disorder, including clinical depression and bipolar disorder,
(c) a psychotic disorder,
(d) a substance induced mental disorder that is not temporary.
A person does not have a mental health impairment for the purposes of this Act if the person's impairment is caused solely by--
(a) the temporary effect of ingesting a substance, or
(b) a substance use disorder.
What is important is that you suffer from a chronic and very serious condition.
What is cognitive impairment?
Cognitive impairment is defined in Section 5 which reads:
For the purposes of this Act, a person has a cognitive impairment if—
the person has an ongoing impairment in adaptive functioning, and
the person has 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.
A cognitive impairment may arise from any of the following conditions but may also arise for other reasons—
intellectual disability,
borderline intellectual functioning,
dementia,
an acquired brain injury,
drug or alcohol related brain damage, including foetal alcohol spectrum disorder,
autism spectrum disorder.
What happens at Court?
The Court may make a diversionary order at any time during the proceedings.
That means that the Court will refer you to a health care provider such as a psychiatrist or psychologist that will help you with your specific problem under a treatment plan.
In particular, an order may be made “whether or not the defendant has entered a plea” or if the Magistrate thinks it is appropriate.
Section 12 sets out the eligibility for the old Section 32 type order.
The Court may make an order if it appears that the Defendant has or had at the time of alleged offence a mental health impairment or a cognitive impairment or both.
What will the Magistrate take into account?
Section 15 sets out a list of factors that a Magistrate may take into account in deciding whether diversion is more appropriate to deal with a defendant:
the nature of the defendant’s apparent mental health impairment or cognitive impairment,
the nature, seriousness and circumstances of the alleged offence,
the suitability of the sentencing options available if the defendant is found guilty of the offence,
relevant changes in the circumstances of the defendant since the alleged commission of the offence,
the defendant’s criminal history,
whether the defendant has previously been the subject of an order under this Act or section 32 of the Mental Health (Forensic Provisions) Act 1990,
whether a treatment or support plan has been prepared in relation to the defendant and the content of that plan,
whether the defendant is likely to endanger the safety of the defendant, a victim of the defendant or any other member of the public,
other relevant factors.
What if I don’t finish the treatment plan?
A treatment or support plan should outline programs, services or treatments or other support that may be required for a Defendant to address the Defendant’s apparent mental health impairment or cognitive impairment.
In making an application for a diversionary order, you need a report in support prepared by a psychiatrist or psychologist which should also provide an assessment about your mental health condition. The report should also include a treatment or support plan which sets out the name of the treatment provider and the duration of that treatment not exceeding 12 months.
Section 16 provides that a person may be called back before the Court for failure to comply within 12 months of the order being made.
It is important to take up the opportunity the Court is giving you to turn your life around.
The Way Ahead
It helps you and society in general to get you out of the criminal justice system. Please do not hesitate to contact us so that we can guide you through the Act and how it may apply in your case.
This article is for information only and does not constitute legal advice.