Where appropriate, an application can be made to the local court seeking that a person facing criminal charges be diverted away from the criminal justice system, and dealt with under the Mental Health Act instead.
The magistrate has the discretion to grant or refuse the application. Where a person is refused, then the matter will proceed pursuant to the criminal justice system as usual. In order to assess the appropriateness, an application must rely on a report from a psychologist or a psychiatrist which supports the criteria under the Mental Health Act.
An application is made pursuant to Section 14 of the Mental Health Cognitive Impairment Forensic Provisions Act 2020. Previously, the application was known as a ‘Section 32’.
The court must be satisfied of the two limbs:
Limb 1 – That a person has or had at the time of the offending, a ‘mental health impairment’ or a ‘cognitive impairment’.
Limb 2 – If the above is satisfied, the magistrate hearing the application uses their discretion as to whether it would be more appropriate to deal with the matter under the Mental Health Act, as opposed to the criminal justice system.
When determining limb 2, the magistrate will consider:
The nature of the mental health impairment or cognitive impairment;
The nature and seriousness of the offence;
The criminal history of the person or whether there has been a previous mental health application before;
Changes in your circumstances since the offence;
Suitability of sentencing options;
Other factors relevant.
The court can make an order for up to 12 months.
If this sounds appropriate for your particular care, or you simply want more information, please contact our office to speak with a criminal lawyer.
