Mental Health Diversion (NSW)

By James Stevens, Director and Solicitor, Go To Court Lawyers. Last reviewed 14 April 2026.

In 2020, the New South Wales parliament passed the Mental Health and Cognitive Impairment Forensic Provisions Act. Under this Act, magistrates now have recourse to mental health diversion orders when dealing with defendants who have been found to have mental health conditions or cognitive impairments. This groundbreaking legislation represents a significant shift toward therapeutic jurisprudence, recognizing that individuals with mental health issues or cognitive disabilities may benefit more from treatment and support than traditional criminal penalties. This page deals with diversion under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

The mental health diversion system in NSW acknowledges the complex relationship between mental health conditions, cognitive impairments, and criminal behavior. Rather than simply punishing offenders, this approach aims to address underlying issues that may have contributed to the offending behavior, ultimately reducing recidivism and promoting community safety through rehabilitation.

Replacement of old mental health diversion system

Under the previous legislative system, a person with a mental health condition could be diverted away from the summary criminal justice system and into the care of mental health professionals. This could be done if the court considered it to be more appropriate for a person to be dealt with through treatment than through the justice system.

Section 14 of the new Act provides for a similar but updated process with some important differences from the old system. The previous Mental Health (Forensic Provisions) Act 1990 had limitations in its scope and application, often leaving gaps in coverage for individuals who could benefit from diversion.

Key improvements in the new system

The 2020 Act introduces several enhancements over the previous legislation. These improvements include clearer definitions of mental health and cognitive impairments, more comprehensive assessment procedures, and better integration with health services. The new system also provides magistrates with greater flexibility in crafting appropriate orders that match the specific needs of individual defendants.

Additionally, the updated legislation places greater emphasis on evidence-based treatment approaches and includes provisions for ongoing monitoring and support, ensuring that individuals receive appropriate care throughout their recovery process.

Section 14 orders

Under section 14 of the Act, a magistrate may dismiss a charge and discharge a defendant:

• into the care of a responsible person, either with or without conditions; or
• on the condition that they attend on a person or at a place for assessment, treatment and support of their mental health impairment or cognitive impairment; or
• unconditionally.

When an order is made under this provision, this does not constitute any kind of criminal finding. This is crucial for defendants as it means they will not have a criminal conviction recorded against them, preserving their employment prospects and social standing while still ensuring they receive necessary treatment.

Types of conditions that may be imposed

The conditions attached to section 14 orders can vary significantly depending on the individual's circumstances and needs. Common conditions include regular attendance at mental health appointments, compliance with medication regimens, participation in counseling or therapy programs, and avoidance of certain locations or people. The court may also require periodic reporting to ensure compliance with the treatment plan.

In some cases, residential treatment or supervised accommodation may be required, particularly for individuals with more severe mental health conditions or cognitive impairments who require intensive support and monitoring.

Who is eligible for a mental health diversion?

Under section 4 of the Act, a person has a mental health impairment if they:

• have a temporary or ongoing disturbance of thought, mood, volition, perception or memory; and
• this would be regarded as significant for clinical diagnostic purposes; and
• the disturbance impairs their emotional wellbeing, judgment or behaviour.

A mental health impairment may arise from an anxiety disorder, clinical depression, bipolar disorder, a psychotic disorder, or a substance-induced mental health disorder that is not temporary.

A person does not have a mental health disorder if they are impaired only by the temporary effect of ingesting a substance or a substance use disorder.

Under section 5 of the Act, a person has a cognitive impairment if:

• they have an ongoing impairment in adaptive functioning; and
• they have an ongoing impairment in comprehension, reason, judgment, learning or memory; and
• the impairments result from damage to or dysfunction, developmental delay or deterioration of their brain or mind arising from an intellectual disability, borderline intellectual functioning, dementia, acquired brain injury, drug or alcohol related damage, or autism spectrum disorder.

Assessment and diagnosis requirements

To be eligible for mental health diversion, defendants typically require professional assessment by qualified mental health practitioners or psychologists. These assessments must establish a clear link between the mental health condition or cognitive impairment and the alleged offending behavior. The assessment reports play a crucial role in helping magistrates understand the defendant's condition and determine the most appropriate course of action.

What must the court consider?

The new Act provides a list of factors that must be considered before ordering a mental health diversion. When deciding whether to make an order under section 14, a magistrate must consider:

• the nature of the mental health condition or cognitive impairment
• the nature, seriousness and circumstances of the offence
• the suitability of the sentencing options available
• relevant changes in the accused's circumstances since the offence occurred
• their criminal history
• whether they have previously been subject to a mental health order
• whether a treatment and support plan has been prepared for them and its contents
• whether they are likely to endanger the safety of others.

Balancing public safety and therapeutic outcomes

Courts must carefully balance the therapeutic benefits of diversion against potential risks to public safety. This assessment involves considering the severity of the alleged offense, the likelihood of reoffending, and the availability of appropriate treatment and supervision arrangements. Magistrates also consider input from prosecution, defense counsel, and mental health professionals when making these determinations.

12-month monitoring period

Under the new mental health diversion system, magistrates may now call defendants .