New Rules for Mental Health Orders in NSW

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By Paul Gregoire and Ugur Nedim

NSW parliament has just passed a bill that overhauls the way the court system deals defendants found to have a mental health or a cognitive impairment and subsequently have their charges dropped, along with an order imposed that requires them to undergo treatment.

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the New Act)  passed through both houses on 16 June. And as the state’s chief lawmaker outlined, it “repeals, rewrites and renames” the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Old Act).

“The forensic mental health reforms in this bill strike the right balance between the needs of victims and the safety of the community, and the mental health of the offender,” NSW attorney general Mark Speakman said during his second reading speech on the bill.

Once the New Act does take effect, a significant reform will be that section 32 mental health orders will no longer apply, but rather a similar and updated process will be available for criminal lawyers to apply for on behalf of their relevant clients charged with summary offences.

The attorney general set out that the bill, which also rewrites the special verdict of “not guilty by reason of mental illness”, was prompted by two NSW Law Reform Commission reports – Diversion and Criminal Responsibility – as well as the 2017 Whealy Review of the Mental Health Tribunal.

Goodbye section 32s

At present, section 32 mental health orders provide that magistrates can deal with defendants with certain types of mental conditions via a process that allows them to undertake treatment and avoid a criminal conviction and penalty.

Falling under section 32 of the Old Act, these orders only apply to those accused of summary offences or with indictable offences that can be dealt with in a NSW Local Court, as can happen with a drug supply charge relating to a small amount of an illicit substance.

A defendant’s lawyer must make a section 32 application, and for it to succeed, the court must be persuaded that it’s more appropriate for the person to be dealt with via a treatment or support plan.

An application must be supported by the evidence of a mental health professional. This is usually in the form of a report that details why such a course of action would be beneficial for the defendant, as well as for the wider community.

And if within a 6 month period, the subject fails to comply with the conditions of an order, the magistrate can then call the person in question back to the court to be dealt with as if their charges had never been set aside in the first place.

Updated diversion orders

When the New Act comes into force, mental health orders will be made under section 14.

These orders allow for a defendant with a mental health or a cognitive impairment to be released into the responsibility of another person or on the proviso that they undertake a treatment or support program or without any conditions.

And making such an order does not constitute any finding relating to a charge whatsoever.

Attorney general Speakman explained in parliament that the updated mental health diversion process falls under part 2 of the New Act, and the procedure remains very much the same as under the Old Act, except for three significant changes.

Impairment definitions

The first difference is that the definitions relating to mental health impairment and cognitive impairment are contained in part 1 of the New Act.

Speakman said these new definitions provide “a clear clinical benchmark in plain English”.

Section 4 of the New Act defines mental health impairment as “a temporary or ongoing disturbance of thought, mood, volition, perception or memory”. It must “be regarded as significant for clinical diagnostic purposes” and it has to affect “emotional wellbeing, judgment or behaviour”

A mental health impairment may arise due to a number of listed disorders – anxiety, affective, psychotic or a substance induced disorder that’s not temporary – and it may also arise due to other reasons.

But mental health impairment can’t be a state of intoxication or substance use disorder.

While section 5 stipulates that a person has a cognitive impairment if they have an ongoing impairment in adaptive functioning and “an ongoing impairment in comprehension, reason, judgment, learning or memory”.

Cognitive impairments must “result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from a condition”.

And cognitive impairments can be a result of intellectual disability, borderline intellectual functioning, dementia, an acquired brain injury, drug or alcohol related brain damage, including foetal alcohol spectrum disorder, autism spectrum disorder, or from some other reason.

Further changes

Another major reform to the mental health order process is that section 15 of the New Act provides a statutory list of considerations that a magistrate may refer to when making a decision on whether to apply a diversion.

This “non-exhaustive” list consists of existing common law factors, as well as others.

These include the nature of a defendant’s impairment, the seriousness and circumstances of the offence, the suitability of sentencing options if found guilty, changes to the defendant’s situation since the alleged offending and their criminal record.

Other factors to consider are whether a defendant has been the subject of a previous mental health order either under the New Act or the Old Act, whether a treatment plan has been prepared and the content of it, and whether the defendant is a danger to themselves, a victim or anyone else.

The third change to mental health order procedures is that magistrates are now able to call discharged defendants back into court to face their original charges if they haven’t been following their treatment or support program for up to 12 months from the order being issued.

Under the current section 32 scheme, a magistrate can only call the subject of an order back into court for a period of up to 6 months.

Diversion reduces reoffending

As minister Speakman was introducing the changes to the diversion process to parliament on 3 June, he referred to a 2019 UNSW Kirby Institute study on the effect of treatment orders on defendants with a serious mental illness.

The attorney general noted that the study found that those receiving a treatment order had a 12 percent lower reoffending rate, than those receiving a punitive sanction.

“The study indicated that diversion into treatment is associated with a significantly reduced risk of reoffending, regardless of the type of offence with which that person was charged,” Mr Speakman added.

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