Mental health impairment or cognitive impairment and criminal law in New South Wales

Since the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) came into force in March of 2021, replacing the Mental Health (Forensic Provisions) Act 1990 (NSW) (often referred to because of section 32 of that Act), we have acted for a number of clients who fall within the scope of the new legislation, supporting them to have their case dealt within the mental health arena, rather than through the traditional criminal justice pathways, and importantly, allowing many of those clients to avoid a criminal conviction.

Recently one client, charged with two assaults and resisting police, benefited from our representations in the Local Court of NSW, with regard to his cognitive impairment. We sought extensive medical, neuron-psychological and psychiatric diagnoses and tendered these as evidence of cognitive impairment. We argued that this impairment and our client’s steps towards treatment for his impairment, warranted his diversion under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) rather than punishment under criminal law. The client escaped conviction, does not have a criminal record, and is now free to move on with their life.

Another client, charged with a road rage assault, also benefited from diversion under the legislation, because of the nexus between his offending and his mental impairment. In this matter, we tendered significant medical material to evidence our client’s circumstances and our crime partner, Nicholas Stewart, persuaded the Court that mental health diversion was appropriate, notwithstanding the prosecutor’s arguments that our client be punished. The psychiatrist we referred this client developed a strong and comprehensive mental health plan. The client escaped conviction, does not have a criminal record, and is now free to move on with their life.

And another client, charged with assaulting her domestic partner, also benefited from mental health diversion under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) in circumstances where we adduced evidence that she was, in fact, a victim of domestic violence and responding to a violent attack by her partner. Despite the prosecution’s arguments that our client should be punished under the criminal law (and deterred from further offending), our crime partner, Nicholas Stewart, again successfully argued that our client benefit from mental health diversion, particularly when offenders with mental health impairments are inappropriate vehicles for specific and general deterrence. The client escaped conviction, does not have a criminal record, and is now free to move on with their life.

You can listen to Nicholas Stewart on the Lawyers Weekly Boutique Lawyer Podcast, here.

In many ways, the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act) does not change how the former section 32 of the old Act operates. But there are some tricky sections that may confuse you and we have explained them below.

What is section 14 diversion?

Section 14 of the Act allows the Local Court of NSW (through a magistrate) to dismiss criminal charges against a person where the person can show that they had, at the time of offending, or have during the proceedings, a mental health impairment, or a cognitive impairment. Although there is discretion to dismiss charges unconditionally and without reference to material, it is most common that defendants will be required to undertake and comply with a mental health treatment plan and obtain forensic reports addressing their conditions and how they fit within the Act.

Photo courtesy of Dr. Jonathan B. Lauter, Flickr

When can you apply for a section 14 diversion?

A section 14 application under the Act operates in a similar way to the old section 32 of the previous Act, in that it allows a person to file evidence of the person suffering from a mental health or cognitive impairment and asking the Court to divert their criminal proceedings out of the court’s criminal jurisdiction and into the mental health arena. This means that, if successful, the person can avoid a criminal conviction (and therefore avoid a disclosable criminal record).

In summary, you can apply for a section 14 diversion if you:

  • are charged with a criminal offence in NSW;
  • the matter is not defended (that is, you do not intend to enter a not guilty plea on the basis that you did not do what is alleged);
  • the matter will be finalised in the Local Court of NSW; and
  • you have a mental health impairment or a cognitive impairment.

Mental health impairments

Under section 4 of the Act, a mental health impairment exists where a person has a significant disturbance of thought, mood, volition, perception, or memory which impacts on their emotional well-being, judgement, or behaviour. Such impairments can arise as a result of anxiety, depressive, bipolar, or psychotic disorders, as well as non-temporary disorders caused by substance usage. The Act does not allow for a mental health impairment caused solely by the temporary effect of ingesting a substance, or a substance use disorder. This can often confuse clients because the Act also allows for a mental health impairment arising from a “substance induced mental disorder that is not temporary”.

The effect of a disorder arising solely from, say, a crystal methylamphetamine addiction (assuming the addiction is categorised as a substance use disorder), is that the relevant person is not eligible to have their matter dealt with under section 14 of the Act. It is important, however, that you seek advice from a criminal lawyer that has experience in applications of this kind because they will liaise with your medical team to ensure you have the best chance of success in such an application and may make an application consistent with you having “a substance induced mental disorder that is not temporary”. Dowson Turco has professional relationships with some of the best clinical psychologists and forensic psychiatrists in Sydney.

Cognitive impairments

Under section 5 of the Act, a cognitive impairment exists where a person has an ongoing adaptive functioning impairment that impacts upon their comprehension, reason, judgment, learning, or memory and arises as a result of conditions such as intellectual disabilities, autism spectrum disorder, or dementia. Section 5 does not exclude cognitive impairments caused by substance use/s.

Court House. Photo courtesy of The Travelling Napper, Flickr

What you need to prove beyond the diagnosis

An application under section 14 requires an applicant to further demonstrate that it would be “more appropriate” to deal with the matter by way of a mental health treatment plan, rather than through the criminal justice system.

In considering an application, a magistrate may have regard to:

  • the nature of the person’s apparent mental health impairment or cognitive impairment,
  • the nature, seriousness and circumstances of the alleged offence,
  • the suitability of the sentencing options available if the person is found guilty of the offence,
  • relevant changes in the circumstances of the person since the alleged commission of the offence,
  • the person’s criminal history,
  • whether the person has previously been the subject of an order under the Act or under section 32 of the Mental Health (Forensic Provisions) Act 1990,
  • whether a treatment or support plan has been prepared in relation to the person and the content of that plan,
  • whether the person is likely to endanger their own safety, a victim of the person or any other member of the public,
  • other relevant factors.

Generally, it is more likely that a case will be diverted where the alleged offending is considered relatively less serious and where defendant has a relatively clean criminal record. Recent cases, such as R v Pullen [2018] NSWCCA 264 at [84], highlight the principles of balancing community safety through rehabilitation of offenders, as compared to community safety through more punitive measures.

The importance of a detailed treatment plan

In our experience, it is critical that a section 14 application is made with proper medical reports from general physicians (GPs), forensic psychiatrists (psychiatrists that are experienced in court reporting and expert evidence), and clinical psychologists. Treatment plans must be detailed and it’s essential your lawyer approaches the matter holistically and with regard to both the law and the science. At Dowson Turco, we have acted for thousands of clients experiencing mental health impairments and, out of those who made applications under the previous section 32 or the current section 14, we have had a success rate of about 95%. We also know that meticulous preparation is key to successful applications.

King Street, Newtown. Photo courtesy of Marks-Gallery, Flickr

Mental health and cognitive impairments impact our general behaviour

We all know that mental or cognitive health can have an influence on our day-to-day actions. The law in NSW recognises that sometimes it is appropriate that people with mental health or cognitive impairments not be punished and, instead, benefit from treatment and care.

Mental health within the law is complex and you need lawyers who deal with it regularly

Criminal courts must consider general deterrence when sentencing offenders within the law (outside of mental health diversion). The sentencing exercise at law is a considerable task, and there are recognised principles that offenders with significant mental health impairments are not appropriate vehicles for specific and general deterrence.

Sometimes prosecutors will argue that certain mental health conditions are not of a kind that they should attract mitigating weight in the sentencing process. We take the view that all mental health conditions have an impact on human conduct. it is our view that, at law, a person’s mental illnesses may classify them as having a disability, and therefore should be able to rely on their mental illness as a mitigating factor when being sentenced. This is because a person may not be fully aware of the consequences of their actions because of their “disability”. In the prominent case of Toole v R; Toole v R [2014] NSWCCA 318, on appeal, the applicant, in part, contended that the sentencing judge had failed to give proper weight to the evidence of the applicant’s mental health problems. His Honour Basten JA at [2] – [3] said:

[2] That raised questions, as Hulme AJ has noted, with respect to the strength of the evidence, the manner in which it was taken into account on sentencing and, objectively, its relevance as a factor in mitigation. I agree with that analysis. However, some caution must be exercised in dismissing the evidence as to the applicant’s use of anabolic steroids and the consequences as being, in a lay person’s terms, a drug addiction and therefore not a factor in mitigation.

[3] A mental illness which is not “self-induced” is treated as a disability or, in morally neutral terms, a misfortune, which may be a material mitigating factor in sentencing. However, to treat a drug addiction as a self-inflicted condition for which the offender must bear full moral responsibility is a less nuanced approach than the law requires. To qualify the absolute position by reference to an exception based on “unusual circumstances” certainly reflects the possibility of consideration, although the circumstances are not identified.


Further advice

This information is general in nature and you should always speak to us in case your circumstances require specific advice.

If you have been charged with a criminal offence you should get in touch with our crime team to discuss your options. We are located at 235 Macquarie Street, Queen’s Square, Sydney, NSW 2000 and next to the Supreme Court of NSW. You can send us an email to or call us on (02) 8000 7300.