Section 32 Mental Health Applications Require a Treatment Provider and Plan to be Specified

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By Paul Gregoire and Ugur Nedim

As Keith Saunders was walking down a street in Surry Hills on 27 February 2016, he spat in the face of a baby being pushed along in a pram by her grandmother. The man spat a sizeable amount of phlegm into the 3-month-old infants’ face, for apparently no reason.

Mr Saunders was subsequently charged with common assault, contrary to section 61 of the Crimes Act 1900 (NSW) which carries a maximum penalty of two years imprisonment.

The defendant’s criminal defence lawyer applied to the court requesting that his client be dealt with under section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), which allows for those who suffer from mental health conditions to be discharged without a criminal conviction or a finding of guilt on the proviso they undertake treatment for up to 6 months.

To be eligible for a section 32 mental health order, the court must be persuaded that it is more appropriate for a defendant to be dealt with by way of a treatment plan than otherwise in accordance with the general criminal law. Applications need to be supported by evidence from mental health professionals, which normally comes in the form of a report which diagnoses the condition/s suffered and specifies a treatment plan.

On 26 August 2016, Central Local Court received a  report which diagnosed Mr Saunders with borderline personality disorder and substance use disorder. In the report, psychologist Patrick Sheehan opined that Saunders satisfied the criteria of having a mental health condition under NSW law.

Local Court decision

In considering the application, NSW Magistrate Beverley Schurr noted that Saunders was about to be released from custody on parole over another matter. And despite the uncertainty surrounding where the defendant would stay on release, Her Honour granted the application, dismissed the common assault charge and discharged Saunders into treatment pursuant to a treatment plan.

Under the plan, Saunders was required to attend counselling within three days of his release and “complete a mental health care plan series of counselling sessions”, which included a requirement that “he attend a psychiatrist for a medication review”.

Section 32 diversions

Section 32 of the Mental Health (Forensic Provisions) Act extends to those who suffer from a cognitive impairment, mental illness or mental condition for which treatment is available in a mental health facility.

It is important to note that the section does not apply to “mentally ill persons”, which are defined under section 14 of the Mental Health Act 2007 (NSW) as those who need “care, treatment or control” to prevent them from causing serious harm to themselves or others.

Under section 32, a magistrate can dismiss the charges and release the defendant into the care of a person, or they can release them unconditionally, or order that they “attend on a person or at a place specified by the magistrate” for assessment and/or treatment.

The section also allows for adjournments and grants of bail to facilitate assessment.

Enforcing orders

Section 32 contains provisions relevant to the situation where defendants fail to comply with their treatment plan or other orders, including orders for their assessment.

In these situations, a defendant can be called back to court to explain why they have failed to comply. The magistrate has the power to excuse the breach or revoke the order. If the order is revoked, the defendant will normally be dealt with under the general criminal law.

Section 32A of the Act provides that a “treatment provider” can report a breach to a community corrections officer, an officer of the Department of Justice or any other prescribed body.

Questions regarding treatment

The NSW Director of Public Prosecutions (DPP) appealed the magistrate’s decision to the NSW Supreme Court (NSWSC) on the ground that she made an error by not specifying that he attend on a particular person or at a particular place for assessment or treatment.

During the Supreme Court hearing on 1 June 2017, the defendant contended that the legislation doesn’t require a magistrate to name a specific person or place.

NSWSC Justice Robert Hulme considered the common law authorities on section 32 releases. He noted that in the 2002 case of DPP versus Albon, NSWSC Justice John Dowd found that a magistrate must provide evidence of some sort of plan, person or institution that the defendant will attend.

He considered that in the 1993 case of Perry versus Forbes, NSWSC Justice Rex Smart ruled that there must be “an effective treatment plan” determined that “was likely to ensure that there would not be a repetition of the incident in question or the occurrence of some other unfavourable incident”.

While NSWSC Justice John Basten asserted in 2015’s Quinn versus the DPP that although the legislation may not explicitly state it, it was contemplated that a magistrate would be provided with a detailed assessment or treatment plan, prior to imposing a section 32 discharge.

A specific treatment provider

In considering the appeal, Justice Hulme found that in cases where a person was being released on conditional measures, the person or place “specified by the magistrate” should “be identified with some precision”.

His Honour reasoned that the absence of a specific person or place determined makes a mockery of the conditional discharge. And in Saunders’ case, there was no way of guaranteeing his psychiatrist would be aware that he was seeing them as part of a court order and therefore report noncompliance.

“I fully appreciate the heavy workload of magistrates dispensing justice in the court with the highest caseload of any in this country,” Justice Hulme acknowledged.

“However, in this case the difficulty posed by the lack of sufficient information would likely have been overcome by a relatively short adjournment; a step that would not greatly have increased the magistrate’s workload.”

The orders imposed

And on 16 June 2017, Justice Hulme allowed the appeal. His Honour set aside the section 32 order and remitted the matter back to the Local Court.

Mr Saunders was ordered to pay the costs of the DPP. However, under section 6 of the Suitors’ Fund Act 1951 (NSW), he was also granted an indemnity certificate that provided him with the amount to cover the court costs he was ordered to pay.

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