Mental Health Diversion (NSW)

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 page deals with diversion under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.  

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 difference from the old system.

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, wither 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.

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 form an anxiety disorder, clinical depression, bipolar, 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.

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.

12-month monitoring period

Under the new mental health diversion system, magistrates may now call defendants back to court to answer to the original charges if they have failed to comply with their treatment or support program for up to 12 months after the section 14 order is made.  

If you require legal advice or representation in any other matter, please contact Go To Court Lawyers.