If you or a loved one suffers from a mental illness or a cognitive impairment and have been caught up in the criminal justice system, it’s important to get legal advice as soon as possible as you may be able to avoid a criminal conviction.
If you haven’t even been criminally charged but have been detained in a mental health facility against your will, you should know what your rights are too. We have represented many people in front the Mental Health Review Tribunal and advocated on their behalf. We will listen to your story, concerns and priorities carefully – and guide you through the process with care and compassion.
Section 14 Mental Health Applications
A Section 14 application can be used by a person charged with a criminal or traffic offence to avoid a criminal record. However, the accused must prove that they suffer from a mental health impairment or cognitive impairment. If the Section 14 application is successful, then the applicant will avoid a conviction for the offence(s).
Generally, a section 14 order will require a person to comply with a mental health treatment plan. Conditions on the plan may include taking medication and regularly consulting their treating psychologist or psychiatrist.
What is a Mental Health Impairment?
- a temporary or ongoing disturbance of thought, mood, volition, perception or memory,
- that disturbance is significant for clinical diagnostic purposes, and
- that disturbance impairs your emotional wellbeing, judgment or behaviour.
- Anxiety disorder,
- Affective disorder, including clinical depression and bipolar disorder,
- Psychotic disorder, and
- Substance induced mental disorder that is not temporary.
- The temporary effect of ingesting a substance, or
- A substance use disorder.
What is a Cognitive Impairment?
Under Section 5 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, a ‘cognitive impairment’ is defined as:
- an ongoing impairment in adaptive functioning
- an impairment that relates to comprehension, reason, judgment, learning or memory, and
- an impairment that results from damage to, or dysfunction, developmental delay or deterioration of your brain or mind.
Cognitive impairment may arise from:
- Intellectual disability,
- Borderline intellectual functioning,
- Dementia,
- Acquired brain injury,
- Drug or alcohol related brain damage, including foetal alcohol spectrum disorder, or
- Autism spectrum disorder.
The Mental Health Review Tribunal
The Mental Health Review Tribunal (MHRT) is a specialist tribunal that deals with the treatment and care of mentally ill persons in New South Wales. It is a quasi-judicial body constituted under the Mental Health Act 2007 with a wide jurisdiction covering both civil and forensic hearings.
The determinations the MHRT may make are set out in the Mental Health (Forensic Provisions) Act 1990.
Fit for Trial
The main reason a person charged with a criminal offence in New South Wales is likely to find themselves before the MHRT is so that the court can determine and order whether that person is presently unfit to be tried and whether they will or will not become fit to be tried within 12 months of the Tribunal’s finding of unfitness.
Following a hearing at the MHRT, the MHRT will send a report to the court which firstly states the determination of the MHRT and secondly a statement of reasons for that determination.
Involuntary Patient Order
The MHRT also has the power to make the decision that a person (who may not be charged with a criminal offence) should become an involuntary patient at a mental health facility and to authorise the continued involuntary detention of a person in a mental health facility.
An Involuntary Patient Order (IPO) is a type of legal order that is used to involuntarily detain an individual for assessment and treatment of a mental illness in New South Wales.
An IPO can be made by a justice of the peace, a police officer, or a medical practitioner in certain circumstances where the person is believed to pose a serious risk to themselves or others due to their mental illness.
The individual must be assessed by two medical practitioners, one of whom must be a psychiatrist, who will determine whether or not the individual meets the criteria for involuntary detention. If the criteria are met, the individual will be placed in a hospital or other suitable facility for treatment.
The length of time an individual can be involuntarily detained depends on the circumstances and the medical assessment. In some cases, the individual may be released if they are no longer considered a risk to themselves or others. In other cases, they may be subject to ongoing involuntary detention.
The use of IPOs is intended to protect the safety of the individual and the community, and to ensure that individuals receive the care and treatment they need for their mental illness. However, it is also important to ensure that individual rights and freedoms are protected, and that the use of IPOs is limited to cases where it is truly necessary.
If you have been charged with a criminal or traffic offence and believe you may be suffering from a mental health condition or a cognitive impairment, or if you have been detained in a Mental Health facility and would like to know what your rights are, call us now to arrange a consultation.
Call us now on 0404 749 240 to arrange a consultation.
