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Mental Health Applications in the Local Court for State Offences

Mental Health Applications in the Local Court for State Offences are made under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

You will succeed in the application if you establish that:

  1. You have a mental health impairment or cognitive impairment, and
  2. It is more appropriate to deal with you by way of a mental health treatment plan than otherwise in accordance with the law.

You have a ‘mental health impairment’ if:

  1. You have a temporary or ongoing disturbance of thought, mood, volition, perception or memory
  2. Your disturbance is significant for clinical diagnostic purposes, and
  3. Your disturbance impairs your emotional wellbeing, judgment or behaviour.

Mental health impairment includes, but is not limited to:

  1. Anxiety disorder
  2. Affective disorder, including clinical depression and bipolar disorder
  3. Psychotic disorder, and
  4. Substance induced mental disorder that is not temporary.

Mental health impairment does not include:

  1. The temporary effect of ingesting a substance, or
  2. A substance use disorder.

You have a ‘cognitive impairment’ if:

  1. You have an ongoing impairment in adaptive functioning
  2. Your impairment relates to comprehension, reason, judgment, learning or memory, and
  3. Your impairment results from damage to, or dysfunction, developmental delay or deterioration of your brain or mind.

Cognitive impairment may arise from:

  1. intellectual disability
  2. borderline intellectual functioning
  3. dementia
  4. acquired brain injury
  5. drug or alcohol related brain damage, including foetal alcohol spectrum disorder, or
  6. autism spectrum disorder.

When deciding whether it is more appropriate to deal with you by way of mental health treatment plan than otherwise in accordance with the law.

The magistrate may consider:

  1. The nature of your mental health impairment or cognitive impairment
  2. The nature, seriousness and circumstances of the alleged offence
  3. Your suitability for the sentencing options available if you were found guilty of the offence
  4. Any relevant change to your circumstances since the alleged offence
  5. Your criminal history
  6. Whether you have previously received an order under the section or an equivalent section
  7. Whether a treatment or support plan has been prepared in relation to you
  8. Whether you are a danger to yourself, the complainant or a member of the public, and
  9. Any other relevant factors.

A mental health treatment plan may direct you to do a range of things, such as:

  1. See your general practitioner and take prescribed medication
  2. Consult a treating psychologist on a regular basis, and
  3. Engage in therapy, such as cognitive behavioural therapy.

The plan can last for up to 12 months.

If your application is successful, the magistrate may order that your charge is dismissed and you are discharged:

  1. With or without conditions into the care of a responsible person
  2. Conditionally upon attending on a person or at a place for treatment or support, or
  3. Unconditionally.

Alternatively, the magistrate may adjourn your case in order for you to complete your treatment or support plan.

It is important to bear in mind that a successful section 14 application means you avoid a criminal conviction and also avoid a finding of guilt.

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