Mental Health Applications in NSW Criminal Law

Facing criminal charges while experiencing mental health issues or cognitive impairment? NSW law provides special procedures for defendants who were mentally unwell at the time of the offence, or who are currently unfit to be tried. These procedures are governed by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) and can result in charges being dismissed, diverted to treatment, or dealt with in ways that prioritise mental health support over punishment.

At Barsha Defence Lawyers, we regularly advise on and prepare mental health applications across Greater Sydney courts. We work closely with forensic psychiatrists and psychologists to build the medical evidence required, and we understand how to navigate the complex legal tests. This guide explains the options available, the evidence required, and what outcomes are possible.

The Three Main Mental Health Pathways

There are three primary mental health pathways in NSW criminal law:

1. Section 14 Application — Mental Health Impairment at the Time of the Offence

Under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act, a Magistrate can dismiss charges if satisfied that the person was suffering from a mental health impairment or cognitive impairment at the time of the alleged offence, and the person would be a suitable person to be dealt with under the Act.

2. Section 32 Application — Mental Health or Cognitive Impairment Diversion

Under section 32, a Magistrate can divert a person with a mental health impairment or cognitive impairment out of the criminal justice system and into treatment. The Magistrate can dismiss the charges, adjourn the matter for treatment, or make other orders designed to support the person's mental health.

3. Fitness to Be Tried / Not Guilty by Reason of Mental Illness

For serious indictable offences dealt with in the District or Supreme Court, a person may be found unfit to be tried (unable to participate meaningfully in the trial due to mental illness or cognitive impairment), or not guilty by reason of mental illness (the offence was committed during an episode of mental illness that deprived them of the capacity to know the act was wrong). These findings result in referral to the Mental Health Review Tribunal.

Section 14 Applications — Requirements and Process

A Section 14 application can be made in the Local Court where the person is charged with a summary offence or a Table 1 indictable offence dealt with summarily. The Magistrate must be satisfied of three things:

• The person has a mental health impairment or cognitive impairment
• The impairment was present at the time of the alleged offence
• The person is a suitable person to be dealt with under the Act

Mental health impairment includes conditions such as schizophrenia, bipolar disorder, severe depression, anxiety disorders, PTSD, and psychotic episodes. Cognitive impairment includes intellectual disability, acquired brain injury, dementia, and developmental disorders such as autism spectrum disorder.

If the application succeeds, the charges are dismissed and the person is discharged. The Magistrate may impose conditions such as participation in treatment programs, but no conviction is recorded and no criminal penalty is imposed.

Section 32 Applications — Requirements and Process

Section 32 applies where a person has a mental health impairment or cognitive impairment at the time of appearing before the court (not necessarily at the time of the offence). The Magistrate can:

• Dismiss the charge
• Adjourn the proceedings and refer the person to treatment
• Discharge the person on condition they participate in treatment or a rehabilitation program

The key difference from Section 14 is that Section 32 focuses on the person's current mental health and their capacity to benefit from diversion into treatment. The offence itself may have been unrelated to mental illness, but the person's current condition makes diversion more appropriate than punishment.

Section 32 is commonly used for offences such as:

• Drug possession or minor drug supply where addiction and mental illness are intertwined
• Public disorder offences committed during mental health crises
• Minor assaults or property offences linked to homelessness and untreated mental illness
• ADVO breaches where the person was experiencing a psychotic episode or severe mental health decompensation

What Evidence Is Required?

Mental health applications require expert psychiatric or psychological evidence. The court will typically require:

• A comprehensive psychiatric or psychological report from a qualified expert (psychiatrist, clinical psychologist, or neuropsychologist)
• The report must address the person's diagnosis, the symptoms present at the time of the offence (for Section 14) or currently (for Section 32), and whether the impairment affected their capacity or behaviour
• A proposed treatment plan — what programs, services, or interventions are available and appropriate
• Evidence of engagement with treatment — attendance at appointments, medication compliance, participation in programs
• Supporting materials — medical records, hospital discharge summaries, previous psychiatric reports, GP letters

Fitness to Be Tried — District and Supreme Court

For serious indictable offences dealt with in the District or Supreme Court, a person may be found unfit to be tried if, because of mental illness or cognitive impairment, they are unable to:

• Understand the nature of the charge
• Enter a plea and understand its effect
• Instruct their lawyers
• Understand the course of the proceedings
• Challenge jurors or follow evidence

If a person is found unfit, the matter is referred to the Mental Health Review Tribunal, which oversees their treatment and periodically reviews whether they have become fit. If they become fit, the criminal proceedings resume. If they remain permanently unfit, the charges may eventually be dismissed.

Not Guilty by Reason of Mental Illness

A person may be found not guilty by reason of mental illness if, at the time of committing the offence, they were suffering from a defect of reason caused by mental illness such that they:

• Did not know the nature and quality of their act, or
• Did not know the act was wrong

This is a complete defence. If successful, the person is found not guilty but is referred to the Mental Health Review Tribunal for detention and treatment. Release is gradual and supervised, often taking years.

What Outcomes Are Possible?

Successful mental health applications can result in:

• Charges dismissed with no conviction recorded
• Diversion into mental health treatment programs instead of punishment
• Conditional discharge requiring participation in treatment
• Adjournment for treatment with charges withdrawn upon successful completion
• Referral to the Mental Health Review Tribunal for ongoing supervision and treatment

What Barsha Defence Lawyers Will Do

When you retain us on a matter involving mental health or cognitive impairment:

• Assess whether a mental health application is appropriate and advise on the most suitable pathway (Section 14, Section 32, fitness, or mental illness defence)
• Refer you to an experienced forensic psychiatrist or psychologist for assessment
• Review and analyse the psychiatric report to ensure it addresses the legal tests
• Gather supporting medical evidence — hospital records, GP letters, medication history, treatment compliance
• Prepare detailed written submissions addressing the legal requirements and proposing appropriate conditions
• Appear in court to argue the application and respond to prosecution objections
• Handle related matters — bail applications where mental health is a factor, fitness hearings in higher courts, and the underlying criminal charges if the application is not successful

Frequently Asked Questions

What is the difference between Section 14 and Section 32?

Section 14 requires the mental health impairment to have been present at the time of the offence and to have caused or contributed to the offending. Section 32 focuses on the person's current mental health and whether diversion into treatment is appropriate regardless of whether the impairment caused the offence.

Do I need to plead guilty to apply for Section 14 or Section 32?

No. Mental health applications can be made without entering a plea. The Magistrate assesses whether the application succeeds based on the evidence, not on your plea. However, if the application fails, you will then need to enter a plea.

Will the charges be permanently dismissed?

If a Section 14 application succeeds, the charges are permanently dismissed. For Section 32, the Magistrate may dismiss the charges immediately, or may adjourn them with conditions and dismiss them later if you comply with treatment. If you fail to comply, the charges can be reactivated.

Can I get a Section 14 for serious offences?

Section 14 is only available in the Local Court for summary offences and Table 1 indictable offences dealt with summarily. Serious indictable offences such as sexual assault, GBH, or drug supply above a certain threshold cannot be dealt with under Section 14. Those matters require fitness to be tried or mental illness defences in higher courts.

What if the prosecution objects?

The prosecution can and often does object to mental health applications, particularly for offences involving violence or where there are concerns about community safety. Your lawyer must address those concerns by proposing strict conditions, demonstrating engagement with treatment, and presenting strong psychiatric evidence.

How long does the process take?

Obtaining a forensic psychiatric report typically takes 4-8 weeks. The matter will be adjourned multiple times while the report is prepared and reviewed. From the initial application to final determination, the process can take 3-6 months or longer depending on court availability and the complexity of the case.

What happens if I'm found not guilty by reason of mental illness?

You are referred to the Mental Health Review Tribunal, which has the power to detain you in a psychiatric facility or release you subject to conditions. Release is gradual and supervised. The Tribunal reviews your case periodically and adjusts conditions based on your progress and risk assessment.

Related Matters

• Bail Applications
• Contravene ADVO
• Drug Supply
• Assault Police

The information on this page is general and does not constitute legal advice. Every mental health matter is different. Contact Barsha Defence Lawyers for advice tailored to your situation. Liability limited by a scheme approved under Professional Standards Legislation.