How Does A Section 32 Mental Health Order Work?

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Section 32 of the Mental Health (Forensic Provisions) Act is commonly used to divert those who suffer from mental conditions away from criminal penalisation and towards getting help and treatment they need.

A section 32 can be granted in situations where someone was suffering from a mental condition at the time of the alleged offence, or can be shown to be suffering from an ongoing mental condition during the court proceedings.

If you have been charged with an offence and you are granted a section 32 mental health order, it means that you will bypass the court system in favour of a court-mandated treatment plan and won’t receive a criminal conviction.

The magistrate may dismiss the charges altogether as long as you agree to participate in a treatment plan.

In other cases, they may adjourn the court proceedings until you have undergone treatment to see how you respond.

If you are currently in custody, you may be able to successfully obtain bail if you can get a section 32 order. This will allow you to remain out of custody until your court date on the condition that you participate in the mandatory treatment program.

A section 32 has benefits over a section 10 dismissal or conditional release order, because with a section 10 dismissal and conditional release order there is still a finding of guilt.

When you receive a section 32, you won’t be found guilty or convicted.

What is a mental health condition?

The definition of a mental health condition is less severe than a developmental disability or mental illness.

Mental health conditions can cover a range of different issues including anxiety, depression, severe substance abuse, bipolar disorder, schizophrenia and anti-social personality disorder.

A mental health condition is broadly defined as a mental health problem which is treatable through a psychologist or counselling.

How do I get a section 32?

If you think you might be eligible for a section 32 mental health order, it’s important to speak to a criminal lawyer as soon as possible.

If you want to apply for a section 32, you will need to obtain a report from a mental health professional such as a psychologist or psychiatrist.

Your lawyer can arrange for you to see a mental health professional who is experienced in providing section 32 reports.

Make sure you find a lawyer who is experienced in obtaining section 32 orders as the process can be complicated, especially if you have a complex medical history or an incidence of substance abuse.

A lawyer who is experienced in getting section 32 orders will be able to assist the psychologist or psychologist by providing them with relevant materials and information that will assist them to prepare a report.

To successfully be granted a section 32, the magistrate needs to decide that the order is a more appropriate course of action than you continuing through the criminal justice system.

Unfortunately many section 32 applications are treated with suspicion, and are often challenged by the prosecution.

You will need to present a strong case and it is highly advisable to have the right lawyer if you want to succeed.

What are the conditions of a section 32?

If you are granted a section 32 you will be required to abide by conditions which are set out by the magistrate.

These conditions can last for no longer than six months, and they will be tailored to your specific circumstances.

Under a section 32 you may be required to:

  • Abstain from drugs and/or alcohol and submit to testing.
  • Undergo mandatory counselling sessions.
  • Take prescribed medication.
  • Agree to have your medication and condition reviewed regularly (usually on a monthly basis).

In some cases, you may also be required to remain in the care of a responsible person and reside at a specific address for the duration of the treatment program.

If you don’t abide by the conditions set by the magistrate you could have your section 32 revoked, and be required to face your original charges in court.

If you are on bail you may be sent back to remand until your court date.

Section 32 orders are intended to be used for the purposes of rehabilitation and reducing reoffending in people with a mental condition.

If you believe you may be eligible to receive a section 32 order, contact your criminal defence lawyer as soon as possible.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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