On 27 March 2021, new laws came into effect in New South Wales to deal with situations where persons suffering from mental health issues come into contact with the criminal justice system.
One of these new laws is section 19 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, which replaces section 33 of the Mental Health (Forensic Provisions) Act 1990.
Section 19 allows a magistrate to order that a person who may be mentally ill or mentally disordered be taken to a mental health facility and held there for assessment, or undertake community treatment, or be discharged into the care of a responsible person, rather than dealt with under the usual criminal law.
One of the benefits of this process is that it enables a person to avoid a criminal record and other penalties.
In fact, a person who is determined to be mentally ill or mentally disordered will have the charges brought against them dismissed after 6 months.
If you or a loved-one is facing a criminal or traffic offence and believe there may be underlying mental health issues, call Sydney Criminal Lawyers anytime on (02) 9261 8881 and let our experienced defence team provide you with accurate advice, as well as valuable support and guidance through the process.
What is a section 19 order?
A ‘section 19 order’ is made under section 19 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
It enables the charges brought against a person to be dismissed after 6 months provided that he or she complies with the terms of the order, which may involve staying at a mental health facility while being assessed, undertaking treatment in the community, or remaining under the care of a ‘responsible person’; with or without conditions.
Such an order can be made if it appears to the magistrate that a person is mentally ill or mentally disordered.
What are the benefits of a section 19 order?
A section 19 order can allow a person to avoid a criminal record and also to avoid a finding that the person was guilty of the charges brought against them.
This allows the person to move forward with his or her life, conviction-free and without a finding of guilt.
What needs to be established for a section 19 order to be made?
A magistrate may make an order under section 19 at any time during the proceedings if it appears that a defendant is mentally ill or mentally disordered.
There is no requirement for the defence or prosecution to apply for such an order – the magistrate can do this on his or her own accord – but the parties can make submissions before the court if they choose to do so.
What is a mental illness?
A ‘mental illness’ a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence of any one or more of the following symptoms:
• Serious disorder of thought form,
• Severe disturbance of mood,
• Sustained or repeated irrational behaviour indicating the presence of any one or more of the above symptoms.
When is a person considered to be mentally ill?
A person is mentally ill for the purposes of the law if he or she is suffering from mental illness and, owing to that illness, there are reasonable grounds to believe that care, treatment or control is necessary:
• for his or her own protection from serious harm, or
• for the protection of others from serious harm.
What is considered when determining whether a person is mentally ill?
When deciding whether a person is mentally ill, a decision maker must take into account the continuing condition of the person, including:
• any likely deterioration in his or her condition, and
• the likely effects of any such deterioration.
What is a mental disorder?
A mental disorder is a condition whether a person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary:
• for his or her own protection from serious physical harm, or
• for the protection of others from serious physical harm.
A person does not necessarily have to be mentally ill to be mentally disordered.
What orders can the court make?
If it appears that a person is mentally ill or mentally disordered, a magistrate can make any one or more of the following orders:
• that the person be taken to, and detained in, a mental health facility for assessment,
• that the person be taken to, detained in and assessed by a mental health facility and brought back to court if he or she is found not to be mentally ill or mentally disordered,
• that the person be discharged conditionally or unconditionally into the care of a responsible person, which may include a community treatment order made under the Mental Health Act 2007
A magistrate or authorised justice may order the transfer of a person to or from a mental health facility and a correctional centre or juvenile justice centres to enable the order to be carried out.
Who may be a ‘responsible person’?
A responsible person may be a health professional such as a treating psychologist, psychiatrist, counsellor or, in some cases, a general practitioner, parent or family member.
What happens if the treatment facility determines there is a mental illness or mental disorder?
It is important to be aware that, if the existence of a mental illness or mental disorder is confirmed after an assessment, the provisions of the Mental Health Health Act 2007 will come into play.
Under that Act, a person may be directed or compelled to comply with certain conditions, including being involuntarily detained in a mental health facility for treatment.
But will the criminal charges be dismissed?
Unless a person subject to a section 19 order is brought back to court within 6 months, the charge or charges that gave rise to the order will be considered dismissed at that time; in other words, after 6 months.
This means there will be no criminal record and no finding of guilt.
What happens if the order is breached?
If a person breaches a section 19 order, he or she may be brought back before the court which can decide to then decide the case under the regular criminal law.