The New Laws on Mental Health in the Criminal Justice System: The Diversionary Pathway

Jimmy SinghJimmy Singh, Principal at Criminal Defence Lawyers Australia, breaks down what the new laws on mental health in the criminal justice system are, where there is a stronger focus on treatment and rehabilitation for those who meet the criteria. 


There is an available legislative framework for a NSW court to determine criminal proceedings where the accused or defendant has mental health issues relevant to the case.

This legislative framework is echoed in The Mental Health (Forensic Provisions) Act 1990 (NSW) (‘The Act’). It is a response to the increasing contact with the criminal justice system by people who have mental health issues.

The Act provides a diversion away from criminal proceedings for those with mental health problems who’re facing criminal charges. Instead, it focuses on treatment and rehabilitation for those who satisfy the relevant criteria for diversion under mental health grounds of the legislation. The can result in the complete dismissal of criminal charges.

The Act has a framework for various mental health diversionary avenues, some of which are considered mental health defences. This article will focus on one particular type of avenue often referred to as the section 32 mental health diversionary path, which has now undergone a complete overhaul.
The section 32 diversionary pathway is currently only available to those charged with offences categorised as ‘summary offences’ or ‘indictable offences’, that end up getting dealt with in the Local Court or Children’s Court, instead of a higher court.

Examples of indictable offences include most assault charges, including assault occasioning grievous bodily harm, whereas summary offences include less serious type charges, including drink driving.
A successful 32 mental health diversionary path results in the criminal charges being dismissed, discharging the defendant either with or without conditions.

As criminal lawyers we come across countless AVO and domestic violence cases, where non-surprisingly, mental health can be a highly relevant factor in the case. For this reason, many domestic violence lawyers find themselves using the provisions of the Act. However, using the provisions of the Act is not limited to just that, it can be and is used across all criminal charges in NSW.


The Old Section 32 Mental Health Diversionary Path

The consequential result of a successful section 32 application includes the conditional discharge of the defendant and dismissal of the charge(s). There will therefore be no criminal record recorded against the defendant’s name if the essential requirements of the section are satisfied.

Upon satisfying the essential requirements of the section 32 application, the Magistrate or Judge may make any one of the following orders when dealing with the defendant’s criminal proceedings:

  1. Adjourn the case;
  2. Grant the defendant bail;
  3. Dismiss the criminal charges and discharge him/her into the case or a ‘responsible person’, conditionally or unconditionally;
  4. Dismiss the criminal charges and discharge him/her conditionally upon attending a person or place specified by the court for purposes of being assessed and/or treated for the mental condition or cognitive impairment, or to allow him/her to continue receiving support in respect of any cognitive impairment;
  5. Dismiss the criminal charges and unconditionally discharge him/her.

Saunders v DPP [2017] NSWSC 760 says, that if the court discharges the defendant into the care of a ‘responsible person’, such order must clearly identify either the person or agency. The person doesn’t necessarily have to be a doctor or mental health professional, nor is such a person required to sign any document or in any way be compelled to provide any service.

The responsible person specified by the court under such order, may report any breach to the court. Importantly, the responsible person is not compelled to do so.

Inherent in being discharged conditionally into the care of a responsible person, a treatment plan or case plan will usually be included in the order, requiring the defendant to comply with same. The treatment or case plan should already be prepared by the defendant or his/her lawyer for the court.

If the court conditionally discharges the defendant with the requirement that he/she attend upon a specified person or place for purposes of treatment or assessment or to allow for continued support, it will generally mean that the defendant must attend a community mental health centre service for ongoing treatment and/or support. This will then not require a ‘responsible person’ to be nominated.

In the event a court unconditionally discharges the defendant, the defendant is not required to comply with any such conditions outlined earlier. This will usually be because further treatment is no longer required.

In the event that a Magistrate suspects a failure by the defendant to comply with a condition of the order, the Magistrate can require the defendant to appear back at court within 6-months of the order.

If the Magistrate is then satisfied that the defendant has in fact failed to comply with a condition during the 6-month period, the Court can then go back to dealing with the defendant according to law. This will then mean that the court will deal with the original criminal charges as if the defendant has not been discharged under section 32. A criminal record and imprisonment are then available sentencing options.


The Essential Requirements for a Successful Application Under the Old section 32

The Local Court Magistrate may make any of the above outlined section 32 orders if, at any time of the criminal proceedings, it appears to the Magistrate:

  1. The defendant has a developmental disability, mental illness, mental condition for which treatment is available in a mental health facility (either as an inpatient or outpatient basis), which may include PTSD, major depression, anxiety disorder or schizophrenia; and
  2. Either of these conditions or disability was present at the time of the alleged offence or anytime during the criminal proceedings; and
  3. The defendant is not considered a ‘mentally ill person’ under the Mental Health Act, which means the defendant is not considered a harm to him/herself or members of public; and
  4. On an outline of the present police fact sheet or other evidence considered relevant by the court, it would be more appropriate to deal with the defendant in accordance with the provisions of section 32 than otherwise than in accordance with law.


Points 1, 2 and 3

The Local Court Magistrate will first consider points 1, 2 and 3. If these points are satisfied, based on the available evidence, then the Magistrate will move to considering point 4 before determining whether or not to, and if so, which section 32 order to make.

A defendant who is at the stage of the court considering points 1, 2 and 3 should have a well prepared expert report from a psychologist or psychiatrist, depending on the condition or developmental disability.

It is important to understand that a psychologist is not a doctor, whereas a psychiatrist is. The report should come from an expert with relevant experience in the condition and in such applications. The report may also outline expert opinions as to points 1, 2 and 3 in addition to a treatment or case plan.

The report should also be in the correct legal form, outline the report writer’s experience and expertise in their chosen field of practice, and should express at the beginning of the report whether or not the report writer is aware of and complies with the expert code of conduct and section 177 of the Evidence Act.

When diagnosing a defendant, the report writer should refer to the Diagnostical and Statistical Manual, also known as DSM-5, with a basis for any such conclusion.


Point 4

Once the defendant has satisfied the criteria of the first limb outlined above, the court will then consider the second limb, namely, is it more appropriate to deal with the matter under section 32 than in accordance with the criminal justice system?

What goes on in the mind of a Magistrate when considering the second limb, and what factors are considered before answering this question?

In order to determine whether it’s more appropriate to deal with the defendant under section 32 of Part 3 of the Act, the Magistrate has to perform a balancing exercise, weighing up on the one hand, the purposes of punishment, and on the other, the public interest in diverting the mentally disordered defendant from the criminal justice system.

This is a discretionary judgement, but it’s one that can’t be exercised properly without due regard being paid to the seriousness of the offending conduct.

The case of Anthony Nicholas Confos v DPP (NSW) NSWSC 1159 at 17 says:

the more serious the conduct, the more important will be the public interest in punishment being imposed for the protection of the community and the less likely it will be appropriate to deal with the defendant in accordance with the provisions of the Act.”

To assist in this assessment, Spigelman CJ said at 30 in the case of DPP v El Mawas [2006] NSWCA 154, when referring to the Primary Judge’s remarks, “due regard must be paid to the seriousness of the offending conduct. But one should not exclude from consideration, when considering the seriousness of the offending conduct, the degree to which the defendant is disabled from being able to control that conduct by limiting consideration to the seriousness of the offence.

When considering the purposes of punishment being imposed, it is relevant to consider the need for general deterrence.

In that respect, the case of R v Fahda [1999] NSWCCA 267, Simpson J at 41 said, that there will be a lesser need for general deterrence where there is an established nexus between the psychological condition and the conduct. This will also reduce the moral culpability of the offender too.

Ultimately, El Mawas’s case also says, that an order under section 32 is available to serious offenders as long as it’s more appropriate than dealing with the matter according to law, and in considering this, the court will reflect on whether or not an order under section 32 will produce a better outcome for the individual and the community.

When deciding on these issues, the Court will basically consider the above issues in addition to whether the limited 6-months duration for the court to call the defendant back to court in the event of a breach of condition(s) is adequate.

All material evidence to be relied upon by a defendant, when making a section 32 application in the local court, should have the above factors in mind to ensure that each issue is addressed in any expert report in support of the application.


Some Important Definitions to Know

What is a “mental condition”?

Section 3 of the Act says that this is ““a condition of disability of the mind not including mental illness or developmental disability of the mind”. Examples include, depression, personality disorder, anxiety disorder or PTSD.

If a “mental condition” applies, to be successful it must be capable of treatment in a “mental health facility”. Such a facility can be a private or public hospital with psychiatric facilities and may also be on the basis of an inpatient or outpatient. A “mental health facility” is defined in the Mental Health Act 2007 (NSW).


What is a “mental illness”?

A “mental illness” is defined in section 3 of the Mental Health Act 2007 (NSW), as “a condition which seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms:

  1. Delusions,
  2. Hallucinations,
  3. Serious disorder of thought form,
  4. A severe disturbance of mood,
  5. Sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d).

An example of a mental illness may include schizophrenia.


What is a “mentally ill person” under the Mental Health Act?

This is “if the person is suffering from a mental illness, and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary for the person’s own protection from serious harm, or for the protection of others from serious harm.”

When considering if the defendant is a mentally ill person, factors that can be considered include:

  • The continuing condition of the defendant;
  • Likely deterioration in the defendant’s condition; and
  • Likely effects of any such deterioration


New Laws on Mental Health and Cognitive Impairment to Replace Section 32

The new Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 (‘the new Act’) basically repeals, rewrites and renames the Mental Health (Forensic Provisions) Act 1990 (‘The Old Act’).

The New Act aims to give the courts more guidance on the factors that should be considered when making orders to divert the defendant away from the criminal justice system. These factors include, victim’s safety, community safety and greater period of time in which the court is able to supervise a person diverted away from the criminal justice system.

The bill has three overlapping primary objectives. First and foremost, it aims to protect victims and the community secondly. It aims to ensure that people with mental health impairment or cognitive impairment who commit crime receive the treatment, support and supervision they need to get well and to prevent reoffending. Thirdly, it provides clear language, structure and processes, enabling efficient and effective responses to people with mental health and cognitive impairment who come into contact with the criminal justice system.” Said NSW Attorney General, Mark Speakman in his second reading speech on the Bill.

Whilst the Bill was passed through Parliament on 16 June, it isn’t expected to come into force perhaps at least until 2021.

Most things of the old Act of section 32 laws remain the same. However below are the main changes to the old Act of section 32 mental health application.


The New Changes

  1. Section 14 of the new Act replaces the section 32 to make an order to dismiss a charge and discharge the defendant in much the same ways as the section 32 orders do.
  2. Introduction to new definitions of “mental health impairment” and “cognitive impairment” outlined in Part 1 of the new Act.
  3. Section 15 of the new Act gives greater guidance in legislation as to the considerations of a Magistrate when making such an order.
  4. Section 16 of the new Act provides a Court with a greater period of time in which to call the defendant back to court if he/she fails to comply with any conditions of the order. The s32 only allows 6-months, whereas the new Act under section 16 allows up to 12-months.

The new definitions of “mental health impairment” and “cognitive impairment” essentially gives a court with a “clearer clinical benchmarks in plain English and outlines the conditions that a defendant must have before a court can consider making a diversion order.”

The Bill outlines, “mental health impairment” is when a person has a temporary or ongoing disturbance that would be regarded as significant for clinical diagnostic purposes and that impairs the person’s emotional wellbeing, judgement or behaviour. A mental health impairment can arise from an anxiety disorder, an affective disorder, a psychotic disorder or a substance0induces disorder that is not temporary.

The requirement that the disturbance be “significant for clinical diagnostic purposes” means that the temporary or ongoing disturbance must be serious enough to result in a mental health diagnosis. Sadness, grief or anger would not suffice…”

This basically means that a person who does a criminal act while intoxicated from drugs or alcohol, with no other clinically significant mental health impairment or cognitive impairment, won’t come within the definitions.

On the other hand, “cognitive impairment” is where a person has an ongoing impairment in adaptive functioning and in comprehension, reasoning, judgement, learning or memory, which has been caused from damage or dysfunction to the brain or mind. Examples include, intellectual disability, dementia, Autism or foetal alcohol spectrum disorder.

Section 15 outlines a non-exhaustive list of factors that a court can take into account when determining whether to make a diversionary order. These factors also reflect the common law position which has now been clearly outlined and reflected into legislation, and include:

  • Seriousness of the offending conduct
  • Criminal history of the defendant
  • Otherwise available sentencing options
  • History of diversion orders made
  • Whether or not a treatment or support plan’s been prepared, and the contents of same
  • Safety of the victim and community

Mr. Jimmy Singh is the principal lawyer at Criminal Defence Lawyers Australia, a team of Sydney criminal lawyers. He is highly respected amongst the profession and recognised for his experience and success, exclusively practising in criminal law for over a decade. Connect with Jimmy via email or LinkedIn LinkedIn