Section 14 Applications

20 May 2024 in Criminal Law | 4 min read | skip to FAQs

This article discusses section 14 applications. These were previously known as  ‘section 32 applications’.  A section 14 application is an avenue for some criminal matters to be diverted and dealt with under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act). Section 14 applications came into effect in New South Wales in 2021 and are used when an individual who has been charged with a criminal offence, was suffering from a mental health or cognitive impairment at the time of the offence.

A successful section 14 application will mean that there will be no conviction recorded on a person’s criminal record or a finding of guilt. This is because the matter is dealt with under a mental health Act, rather than under a criminal Act.

What is a Section 14 Application?

A section 14 application is one made under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

Put simply, there are 2 requirements to successfully plead a section 14, the magistrate must be satisfied that:

1. At the time of the offending, the person had a mental health impairment, a cognitive impairment or both
2. And that the magistrate determines that the most appropriate way to deal with the offender is under the provisions of the section 14 Act.

If a section 14 application is successful, the matter is dismissed and the accused may be discharged into the care of a responsible person, placed under treatment conditions, or subject to other community-based supports. The individual may also be required to comply with a treatment plan for up to 12 months. Section 14 offers a therapeutic, non-punitive alternative that prioritises rehabilitation and ongoing mental health support.

Elements that the Magistrate will Consider in Making the Decision

Section 15 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 sets out relevant factors the magistrate may consider:

1. the nature of the defendant’s apparent mental health or cognitive impairment
2. the nature, seriousness and circumstances of the alleged offence
3. the suitability of the sentencing options available if the defendant is found guilty of the offence
4. relevant changes in the circumstances of the defendant since the alleged offence
5. the defendant’s criminal history
6. whether the defendant has previously been the subject of an order under this Act or s32 of the Mental Health (Forensic Provisions) Act 1990
7. whether a treatment or support plan has been prepared and the content of that plan
8. whether the defendant is likely to endanger the safety of the defendant, a victim of the defendant or any other member of the public

What is a Mental Health Impairment?

A mental health impairment is defined in defined in section 4 of the Act, which states that a person has a mental health impairment if:

1. The person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and 
2. The disturbance would be regarded as significant for clinical diagnostic purposes, and 
3. The disturbance impairs the emotional wellbeing, judgment or behaviour of the person.

The Act goes on further to provide examples of relevant disorders, such as:

1. An anxiety disorder,
2. An affective disorder, including clinical depression and bipolar disorder,
3. A psychotic disorder,
4. A substance induced mental disorder that is not temporary

The Act clarifies under section 4(3) that a person who was suffering from the temporary effect of ingesting a substance, or a substance use disorder, cannot be classed as having a mental health impairment. 

What is a Cognitive Impairment?

A cognitive impairment is defined in section 5 of the Act, and states that a person has a cognitive impairment if:

1. The person has an ongoing impairment in adaptive functioning, and
2. The person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and
3. The impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind

The Act goes on further to provide examples of relevant impairments, such as:

1. Intellectual disability,
2. Borderline intellectual functioning,
3. Dementia,
4. An acquired brain injury,
5. Drug or alcohol related brain damage, including foetal alcohol spectrum disorder,
6. Autism spectrum disorder.

Making A Section 14 Order

Your criminal lawyer will determine if your matter is suitable for a section 14 application. You may need supporting evidence from a treating psychologist or medical professional. Your solicitor will discuss how to proceed.

Section 14 of the Act, allows for the court to dismiss the charge and discharge the defendant:

1. Into the care of a responsible person, such as a psychologist or family member, being subject to conditions, such as regular psychological treatment, or
2. On the condition that the defendant attend for assessment, treatment or support for the defendant’s mental health impairment or cognitive impairment, as determined by the magistrate.

The responsible person is expected to notify the Court if the individual is not abiding by the mental health plan. 

Breaching A Section 14 Order

If the court finds or is notified that the individual is not abiding by the mental health plan outlined in the application, the individual can be brought back before the court and the matter dealt with according to criminal (rather than mental health) law.

How can BSM Sydney Lawyers assist you? 

The criminal lawyers at BSM Sydney Lawyer are experienced in successfully arguing for section 14 applications for some criminal offences. Our criminal lawyers have experience across all levels of courts in NSW and are confident and powerful advocates for our clients. The criminal defence team at BSM Lawyer Sydney represent clients in the Local and District Courts most week days. We also have a panel of criminal barristers that we call on for more serious matters. Our senior criminal lawyers provide a free 20-minute consultation to discuss your individual case.

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BSM Lawyer Sydney have offices conveniently located at Sydney CBD, Sutherland, Parramatta, Shellharbour and Wollongong.