A Section 14 application is one of the most important diversionary options available in the NSW Local Court for people living with a mental health impairment or cognitive impairment. Rather than proceeding through the ordinary criminal justice process, the Court has the discretion to dismiss the charge and divert an eligible person into appropriate treatment or support.
The purpose of a Section 14 order is not to excuse criminal behaviour, but to recognise that where offending is substantially connected to a person’s mental health or cognitive impairment, treatment may better serve both the individual and the community than punishment.
Section 14 applications are governed by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), which replaced the former section 32 regime in 2021. The legislation aims to reduce reoffending by addressing the underlying causes of offending through assessment, treatment and ongoing support. (NSW Health)
Who Can Apply for a Section 14 Order?
A defendant may be eligible for a Section 14 application if they suffer from a recognised mental health impairment or cognitive impairment as defined by the Act.
Examples may include:
- Depression
- Anxiety disorders
- Bipolar disorder
- Schizophrenia
- Post-traumatic stress disorder (PTSD)
- Autism Spectrum Disorder
- Intellectual disability
- Acquired brain injury
- Dementia or other recognised cognitive impairments
Importantly, simply having a diagnosis does not automatically entitle a person to a Section 14 order. The Court must be satisfied that the statutory requirements are met and that diversion is appropriate in the circumstances. (NSW Health)
What Must the Court Be Satisfied Of?
Before granting a Section 14 application, the Local Court must generally be satisfied that:
- The defendant has a mental health impairment or cognitive impairment.
- The offence is one that can properly be dealt with in the Local Court under the diversion provisions.
- It is more appropriate to divert the defendant into treatment or support than to deal with the matter according to the ordinary criminal law.
- A suitable treatment or support plan has been prepared.
The Court usually relies upon detailed psychiatric or psychological evidence explaining the diagnosis, how the condition affected the defendant, the proposed treatment, and why diversion is appropriate. (judcom.nsw.gov.au)
What Orders Can the Court Make?
If a Section 14 application is successful, the Court may dismiss the charge and discharge the defendant:
- Into the care of a responsible person.
- Subject to conditions requiring attendance for assessment, treatment or support.
- Unconditionally where appropriate.
If conditions are imposed and later breached, the defendant may, in some circumstances, be brought back before the Court within 12 months for the original charge to be dealt with according to law.
