State Mental Health Diversion After 27.03.2021
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Act & Section |
Mental Health and Cognitive Impairment (Forensic Provisions) Act: s.14 |
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Type |
Mental health diversion |
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Process |
Application before the Local Court |
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What |
Alternative to punishment – NSW State offences |
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Observations |
IMPORTANT NOTE: If you have a matter that is to be dealt with in the District or Supreme Court, this process, unless on appeal from the Local Court, cannot be utilised, an entirely different regime in s.4 – 30 needs to be referred to. |
Applications for diversion on mental health grounds can be made in the Local Court asking that the matter be dealt with by way of psychiatric and psychological treatment, as opposed to being dealt with ‘in accordance with law’. If successful, the matter will be dismissed and the person discharged.
An application can be made to the court seeking diversion pursuant to s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFPA). It can be made at any time before the finalisation of a matter, by either the applicant’s representative or a magistrate exercising their discretion.
To make a successful application to the court, a magistrate must be satisfied of two main tests:
- The jurisdictional test: does the applicant have, or had at the time of the offending, a mental health impairment or a cognitive impairment, or both?
A medical report, served on the court and the prosecution, which states that the applicant is suffering from, or was suffering from at the time of the offending, a mental health impairment or cognitive impairment will usually satisfy this test.
A magistrate has the power upon application by the applicant to adjourn proceedings to ensure that the applicant be assessed or diagnosed and/or that an appropriate treatment or support plan has been created to ensure compliance with an order, if it is to be made.
An applicant does not have a mental health impairment if it is caused solely by the temporary effect of ingesting a substance, or a substance use disorder: s 4
- The balancing exercise: does it appear that it would be more appropriate to deal with the applicant by way of diversion?
A magistrate has complete discretion to determine whether the matter would be better dealt with through diversion and not in accordance with law. A magistrate is not bound by rules of evidence and can make determinations as he or she deems fit.
S 15 MHCIFPA provides a non-exhaustive list of factors that may be taken into account by a magistrate, as follows:
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Provision |
Examples |
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a. |
The nature of the defendant’s apparent mental health impairment or cognitive impairment |
A magistrate may take into consideration what the impairment is, its impact on the applicant and whether there is a nexus between the impairment and the conduct |
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b. |
The nature, seriousness and circumstances of the alleged offence |
A magistrate may consider the seriousness of the offence, its severity and the context in which it was committed
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c. |
The suitability of the sentencing options available if the defendant is found guilty of the offence |
The magistrate may take into account what options are available to the court if the application for diversion is not successful and whether they are appropriate in the circumstances |
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d. |
Relevant changes in the circumstances of the defendant since the alleged commission of the offence |
Some changes in the applicant’s circumstances may affect a magistrate’s view of the suitability of diversion. Examples could be changes in psychiatric or psychological treatment, the commencement of rehabilitation services, or employment or residential changes |
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e. |
The defendant’s criminal history |
A magistrate may consider whether the applicant has committed previous offences of a similar nature or whether the current offences before the court are out of character |
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f. |
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 |
A magistrate may take into consideration whether orders for diversion have been made in the past, whether they were appropriate and the applicant’s compliance, or non-compliance, of those orders |
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g. |
Whether a treatment or support plan has been prepared in relation to the defendant and the content of that plan |
If a treatment or support plan has been prepared, a magistrate may take it into account in determining whether appropriate support or treatment is proposed and available to the applicant, if the application is successful |
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h. |
Whether the defendant is likely to endanger the safety of the defendant, a victim of the defendant or any other member of the public |
The magistrate may consider whether the applicant is a risk to themselves and those around them and whether this risk is too significant to consider dealing with the applicant by way of diversion |
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i. |
Other relevant factors |
It is open to a magistrate to take into account any other factor they deem relevant in the consideration of an order for diversion
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Following the application, a magistrate may do one of the following:
- Adjourn the proceedings,
- Grant bail,
- Make any other order the magistrate considers appropriate.
If the application for diversion is successful, pursuant to s 14, a magistrate may make an order to dismiss the charge and discharge the applicant:
- Into the care of a responsible person (often the doctor who will be monitoring the treatment plan), unconditionally or subject to conditions, or
- On condition the applicant attend on a person or at a place specified by the magistrate for assessment, treatment or the provision of support for the defendant’s mental health impairment or cognitive impairment, or
- Unconditionally.
Upon successful application before the court, the person is subject to comply with the magistrate’s orders for a period of 12 months. Any breach within that time period could result in the following:
- The magistrate may require the applicant to return to court,
- If the applicant fails to appear, the magistrate may issue a warrant for their arrest or direct a warrant to issue by an authorised officer,
- The magistrate may deal with the applicant as if the discharge granted, was not granted and revisit the matter, including revisiting the order or imposing a penalty at law.
Despite any law, any person ordered to provide treatment or assess the applicant may report to the court any failure to comply with a condition of the order: s 17
This application is not available to people who are mentally ill or mentally disordered.
In conclusion, if the application is successful, it will mean the offence is dismissed and there is no finding of guilt and no conviction. However, if the orders are breached, the magistrate may deal with the matter afresh as stated above, which could mean the matter being dealt with at law.