Sydney Criminal Lawyers in Mental Health Cases


The criminal justice system is mainly designed to cater for participants who do not suffer from mental illnesses.

This one-size-fits-all approach often means that support systems are not properly implemented to ensure that a person’s mental condition does not lead to future offending.

However, there are a number of laws that try to deal with the special difficulties faced by mentally ill persons.

‘Section 32’

One law that is commonly used by criminal lawyers is section 32 of the Mental Health (Forensic Provisions) Act 1990.

That section says that a Magistrate can dismiss charges and discharge a defendant into the care of a responsible person, such as a psychologist, if:

  1. The person suffers from a mental condition, and
  2. It is more appropriate to deal with the person by way of a ‘treatment plan’ than otherwise in accordance with the law.

1. ‘Suffers from a mental condition’

This requirement is often called the ‘first limb’.

The defence must convince the Magistrate that the defendant suffers from a ‘mental condition’ according the the ‘DSM 5’, which is the American manual that lists and describes mental conditions such as depression, anxiety, anti social personality disorder, bi polar disorder etc.

This ‘first limb’ is usually established by getting a report from a mental health professional such as a psychologist or psychiatrist that diagnoses the sufferer.

That report is normally sent to the court sometime before the court date.

A copy should also be sent to the prosecution so that the defence lawyer can try to persuade them to agree that section 32 is an appropriate way to deal with the case.

2. ‘More appropriate to deal with person by way of a treatment plan’

This is callled the ‘second limb’ and is often harder to establish.

The defence must convince the Magistrate to exercise their discretion to dismiss the charges and discharge the defendant as long as they adhere to a ‘treatment plan’, rather than to punish them in accordance with the law.

In making that decision, the Magistrate is required to weigh-up the community’s interests in the objectives of punishment against the community’s interests in diverting the defendant away from the criminal justice system.

This is where it gets a little more complicated and requires a closer look at the alleged offence/s and the content of the defendant’s psychological and/or psychiatric report.

If the alleged offences are serious and prevalent in the community, it is less likely that the charges will be dismissed under section 32.

This is because heavy emphasis must be placed upon deterring the defendant and others from committing similar offences, and upon meeting the alleged victim’s and the community’s expectation that the defendant will be punished for the conduct

On the other hand, it is more likely that section 32 will be exercised when the offences are less serious and prevalent, especially if the mental health report draws a link between the underlying condition and the alleged conduct and says that the likelihood of (re-) offending is very low if the defendant complies with the treatment plan.

Many factors come into play when the Magistrate is considering whether to dismiss the case under section 32, including:

    • the degree of the person’s mental condition. The law says that less emphasis is to be placed upon the need to deter others in cases where the defendant suffers from a severe mental condition;
    • whether there is a clear link between the mental condition and the alleged offence. The expectation is that there should be some ‘nexus’ between the condition and the defendant’s conduct. For this reason, it can be harder to achieve a section 32 for driving offences such as drink driving or driving whilst disqualified, whereas it can be easier in cases involving assaults, drugs, threats, larceny/stealing, fraud etc especially if there is a clear nexus between the condition and conduct, particularly where the conduct appears to be a ‘cry for help’; and
    • the strength of the psychological or psychiatric report.

Strength of the report

Obtaining a relevant and persuasive mental health report is very important.

The best mental health reports:

  • are based upon several sessions with the defendant,
  • are comprehensive in so far as they contain a detailed personal history, mental health history, outline of events leading up to the alleged offence, diagnosis and prognosis,
  • specify that the diagnosis is contained in the DSM 5,
  • draw a link between the mental condition and the incident itself,
  • state that help is available at a mental health facility,
  • contain a detailed treatment plan, limited to 6 months (which is the maximum length for the purposes of section 32), and
  • state that the prognosis is positive if the treatment plan is adhered to.

The treatment plan

It is essential that the treatment plan contained in the report lists each of the defendant’s obligations.

For example, a treatment plan might contain the following requirements:

‘That for a period of 6 months Mr Smith must:

  1. Consult his psychologist on a weekly basis for treatment including cognitive behavioural therapy.
  2. Consult a psychiatrist within 4 weeks for assessment and re-evaluation of his condition.
  3. Continue taking medication as prescribed.’

It is not enough for the report to simply contain a statement such as ‘Mr Smith is doing well and should continue to see me regularly and take his medication. If he does this, his chance of future offending is low’.

The lawyer’s job

A good criminal defence lawyer will quickly determine whether section 32 might be available in their client’s case.

If so, they will explain that option to the client.

If the client wants to pursue the option, the lawyer will arrange an appointment with a psychologist or psychiatrist for assessment and/or treatment with a view to obtaining a comprehensive report.

If the client has seen a mental health professional in the past, the lawyer might write a detailed letter to that person outlining the present case and the requirements of section 32, and requesting that they prepare a report.

Once the report is received, the lawyer should review it, suggest any amendments to the mental health professional and then serve it upon the court and prosecution.

The prosecution should then be contacted regarding their views about the application.

You might be surprised how often prosecutors agree that section 32 is an appropriate way to deal with the case! This can make the application a lot easier in court.

A good criminal lawyer will know the relevant case-law and persuasively argue for a section 32 in court.

Why pursue section 32?

You may already have heard of something called ‘section 10’ – which is when a person is guilty of a crime but the Magistrate does not record a criminal conviction against them.

Some say that section 32 is even better than section 10 because there is no conviction AND no finding of guilt.

Perhaps more importantly, section 32 is a mechanism for ensuring that those who suffer from mental conditions get the help they need, thereby reducing the likelihood of future offending and benefiting society as a whole.


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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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