Often times we have clients who come to us, who have exceptional circumstances where it is evident they are suffering from some mental health issues. If you have been charged with a crime and were suffering from a mental or cognitive impairment at the time, there are good prospects for your matter to be dealt with under the Mental Health and Cognitive Impairment Act 2020, allowing you to avoid a conviction and be diverted from the criminal justice system. For the Court to consider such an approach, A ‘Section 14 Application’ must be put before the Court.
What is a Section 14 Application?
A Section 14 Application is an application made to the Local Court to have your matter dealt with under the Mental Health and Cognitive Impairment Act.
If granted, your charges will be dismissed on the condition that you undertake treatment for your mental health for a period of up to 12 months. You therefore avoid a criminal record and are diverted from the criminal justice system.
Who is eligible for a Section 14?
Under Section 14 of the Mental Health and Cognitive Impairment Act 2020, a successful application first requires that you have:
- A mental health impairment; or
- A cognitive impairment
What is a mental health impairment?
Under the Act, you are deemed to have a ‘mental health impairment’ if:
- You have a temporary or ongoing disturbance of thought, mood, volition, perception or memory,
- Your disturbance is significant for clinical diagnostic purposes, and
- Your disturbance impairs your emotional wellbeing, judgment or behaviour.
Mental health impairment includes, but is not limited to:
- Anxiety disorder,
- Affective disorder, including clinical depression and bipolar disorder,
- Psychotic disorder, and
- Substance induced mental disorder that is not temporary.
Mental health impairment does not include:
- The temporary effect of ingesting a substance, or
- A substance use disorder.
What is a cognitive impairment?
Under the Act, you are deemed to have a ‘cognitive impairment’ if:
- You have an ongoing impairment in adaptive functioning
- Your impairment relates to comprehension, reason, judgment, learning or memory, and
- Your impairment results from damage to, or dysfunction, developmental delay or deterioration of your brain or mind.
This may be in relation to any one of the following:
- Intellectual disability,
- Borderline intellectual functioning,
- Dementia,
- Acquired brain injury,
- Drug or alcohol related brain damage, including foetal alcohol spectrum disorder, or
- Autism spectrum disorder.
How do I show that court that I have a mental illness or cognitive impairment?
You are required to undergo an assessment with a psychologist qualified to draft section 14 reports for Court. The report must determine that at the time of your offending you were experiencing a mental health or cognitive impairment. The Court will rely on the psychologists findings, to determine whether it accepts that you were suffering from an impairment.
What are my obligations, if the Section 14 is granted?
You will be required to undergo a mental health treatment plan for a period of up to 12 months. This would need to be supervised by your treating psychologist. The Court will not grant the application without first having confirmation form your psychologist that they agree to implement the plan and report to the Court if you fail to comply.
What is in a Mental Health Treatment Plan?
Your mental health treatment plan would be in a form that would include (but is not limited to):
- Attending your general practitioner on a regular basis;
- Adhering to your prescribed medication regime;
- Attending your treating psychologist on a regular basis; and/or
- Engaging in therapy, as required.
What happens if I do not comply?
If you do not comply, your treating psychologist will notify the Court and you will be brought back before a Magistrate. You will then be dealt with under the criminal justice system, and be exposed to criminal penalties, and possibly a conviction.
The content of this article is general in nature. To seek qualified advice from our Criminal Law Team you can contact our Sutherland office by calling us at – 9525 8688 – or by email on – wmd@wmdlaw.com.au
