Mental Health Application
Specialists in Sydney
Leeds Lawyers are committed to assisting clients who have been charged with an offence whilst suffering from a mental illness. Please contact us today.
We Understand Mental Health
Individuals who are charged with criminal offences and are suffering from a mental illness may have the charge dismissed under the Mental Health (Forensic Provisions) Act 1990. A successful application will mean no conviction is recorded and no penalty applies, however the individual must comply with ongoing treatment by Order of the Court. A Section 32 Application is complex and requires a practitioner who has experience and specialised knowledge in the field. Contact Leeds Lawyers for a free confidential case assessment.
The Court recognises that mental health is a significant issue in the community and is often a factor related to offending behaviour. The law is designed to assist people who suffer from mental illnesses to ensure they are treated fairly whilst also protecting the community.
Section 32 of the Mental Health (Forensic Provisions) Act (NSW)1990 enables Magistrates in the Local Court to divert persons with mental conditions into appropriate treatment for no longer than 6 months.
The result is that people with mental conditions are sent to get the treatment they need and avoid any conviction. They are not subject to punishment within the criminal justice system.
The eligibility criteria is set out Section 32(1)(a)(i)(ii) & (iii) Mental Health (Forensic Provisions) Act (NSW) 1990 and includes persons who are:
- cognitively impaired;
- suffering from a mental illness; or
- suffering from a mental condition for which treatment is available in a mental health facility.
A Section 32 application can be made at any point in the proceedings, even after being found guilty of an offence beyond reasonable doubt.
It is our responsibility to make arrangements with the report writer and to gather all the evidence required to run a successful Section 32 Application.
Section 32 applications are complex and require a thorough report prepared by an experienced psychologist or psychiatrist which addresses the specific requirements of the Act. The report writer does not necessarily need to be the individual’s treating practitioner, but they must agree to inform the court of any breaches of a Mental Health Treatment Plan.
An application under Section 32 requires a Magistrate to make three decisions:
- Whether the defendant is eligible to be dealt with under the section.
The Court requires medical evidence from a forensic psychologist or psychiatrist to establish this jurisdictional question which involves a finding of fact.
An individual must suffer from a diagnosable mental illness but not be a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 2007 (NSW) for which treatment is available.
It is crucial that the report contains a comprehensive mental health treatment plan which will form the basis for the Order. The treatment plan must name the medical professional providing the treatment and where it is proposed to occur.
- Whether it is more appropriate to deal with the defendant in accordance with the provisions of the part than otherwise in accordance with law: s32(1)(b) Mental Health (Forensic Provisions) Act.
When considering this question, the Magistrate should have regard to a range of factors, including the following:
- The seriousness of the offence which is reflected in the maximum penalties for the offence;
- The particular facts of the offence for which a defendant is charged rather than the type of offence;
- The degree to which a defendant is disabled from being able to control the offending conduct; and
- The need for specific and general deterrence;
The fact that an offence is properly characterised as serious is not a reason for an order under section 32 not to be made. In DPP v El Mawas, McColl J said that: [79] … the section 32 diversionary regime is available to serious offenders as long as it is regarded, in the Magistrate’s opinion, as more appropriate than the alternative.
- If it is more appropriate to deal with the defendant according to Section 32, which of the actions set out in subsections (2) or (3) should be taken?
Under the terms of a Section 32 Order, the medical professional has a duty to inform the Court if an individual is in breach of the Mental Health Treatment Plan. Should the individual not comply with the conditions set out in the Order they can be called on to appear before the Magistrate under Section 32(3A).
Why Leeds Lawyers?
- You deal directly with our experienced Principal Solicitor from start to successful completion.
- We have built a reputation on achieving exceptional results.
- Each matter is our priority and we ensure that it is thoroughly prepared.
- You are kept informed every step of the way.
- We become personally invested in your case because we know how important it is to you and your loved ones.
- We offer fixed priced services for most criminal law matters.
- We have built working relationships with other solicitors and the Police which results in more effective negotiations.
Do I Need a Lawyer?
Navigating the Section 32 application process is a lot easier with Leeds Lawyers by your side. If you are worried about this application, please contact us today and our principal solicitor, Mark Kryakos, will give you the reassurance you need.
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