Section 14 MHCIFP Act: mental health diversion explained.

Section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) is the diversion mechanism that allows a Magistrate to dismiss a criminal charge against a defendant with a mental health or cognitive impairment, conditional on engagement with treatment. The order is the modern replacement for the old section 32 application under the Mental Health (Forensic Provisions) Act 1990. The principles are similar; the wording is new; the case law is developing. This note explains the order, the diagnostic threshold, the factors the Magistrate weighs, and what a well-prepared application looks like.

The legal hook: section 14 of the MHCIFP Act

Section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) applies to criminal proceedings in the Local Court (and on appeal in the District Court) where the defendant has, or had at the time of the alleged offence, a mental health impairment or a cognitive impairment.

The provision empowers the Magistrate, having considered the matter, to make an order:

• Dismissing the charge and discharging the defendant unconditionally; or
• Dismissing the charge and discharging the defendant on the condition that the defendant attend on a person, or at a place, specified by the Magistrate, for assessment, treatment or the provision of support for the defendant's mental health impairment or cognitive impairment; or
• Dismissing the charge and discharging the defendant into the care of a responsible person, on conditions.

If the order is made, the charge is dismissed and no conviction is recorded. The fact of the diversion order is recorded but is not visible on a standard criminal record check.

The diagnostic threshold: definitions in section 4 and section 5

The application is open to defendants with a defined impairment. The Act draws a careful distinction.

Mental health impairment (section 4) means a temporary or ongoing disturbance of thought, mood, volition, perception, or memory, that significantly impairs the person's emotional well-being, judgment, or behaviour. The defined list includes anxiety disorder, affective disorder, psychotic disorder, substance-induced mental disorder (in defined circumstances), and others. Substance use disorder, of itself, is not a mental health impairment.

Cognitive impairment (section 5) means an ongoing impairment in adaptive functioning, comprehension, reason, judgment, learning or memory, that results from damage to or dysfunction of, or developmental difference in, a person's brain. The defined list includes intellectual disability, borderline intellectual functioning, dementia, acquired brain injury, drug or alcohol related brain damage (including foetal alcohol spectrum disorder), and autism spectrum disorder.

The diagnostic evidence is the foundation of the application. A treating psychiatrist's report addressing whether the defendant meets the section 4 or section 5 definition is the document the Magistrate looks at first.

The matters the Magistrate considers: section 15

Section 15 lists the factors the Magistrate may consider in deciding whether to make a section 14 order:

1. The nature of the defendant's apparent mental health impairment or cognitive impairment.
2. The nature, seriousness, and circumstances of the alleged offence.
3. The suitability of the sentencing options available if the defendant is found guilty.
4. Relevant changes in the circumstances of the defendant since the time of the alleged offence.
5. The defendant's criminal history.
6. Whether the defendant has previously been the subject of an order under section 14 or under section 32 of the former Act.
7. Whether a treatment or support plan has been prepared in relation to the defendant and the content of that plan.
8. Whether the defendant is likely to endanger the safety of the defendant, a victim, or any other member of the public.
9. Any other relevant matter.

The list reads like a balance sheet. The strongest applications give the Magistrate a clear answer to each factor, supported by evidence.

What a strong application contains

Six items make the practical difference in matters that succeed.

1. A psychiatric or psychological report addressing the definitional threshold. The report must say, in terms, that the defendant has a mental health impairment or a cognitive impairment as defined. Without that, the threshold is not met and the application fails at the door.
2. A treatment or support plan. Section 15 expressly invites the Magistrate to consider whether a plan exists. A plan in writing, signed by the treating clinician, identifies the proposed treating practitioner, the frequency of contact, the medications (if any), and the duration. A plan addresses the question section 14 asks: what is the order going to look like?
3. An assessment of risk. Section 15 directs the Magistrate to consider whether the defendant is likely to endanger anyone. The report should address risk explicitly, with the clinician's view on the level of ongoing risk and the protective effect of treatment.
4. A link between the impairment and the offending. The Magistrate has to be persuaded that the impairment is relevant to the offending, not just present in the defendant. The report should address how the impairment contributed to the offending and how treatment will reduce the risk of repetition.
5. Evidence of insight and engagement. A defendant already engaged with a treating doctor, taking prescribed medication, and attending appointments presents a different application from a defendant who has not yet sought help. The application is stronger where the engagement pre-dates the court date.
6. An offer of conditions. A section 14 order with conditions runs for up to 12 months. The application should propose the conditions the Magistrate could impose: attendance with a named treating doctor, continued medication, attendance at a named program, abstention from alcohol or drugs.

Length of the order: section 14(2)

A section 14 order with conditions lasts for a period not exceeding 12 months. The Magistrate fixes the period. At the end of the period, the order ends; there is no further obligation. The charge is dismissed at the time the order is made; the period of the order does not change the dismissal.

What happens on breach: section 16

If the defendant fails to comply with a condition of a section 14 order, the matter can be brought back before the Magistrate within six months. On a proven failure, the Magistrate has two options:

1. Discharge the defendant from the order without taking further action.
2. Deal with the original charge as if the section 14 order had not been made.

The second option is the real teeth of the breach provision. On a proven breach, the matter goes back to the start of the criminal proceeding and is sentenced as if the diversion never happened. In our practice, breach orders are rare; most clients who get a section 14 order do the work the order requires.

Where section 14 is realistically available

The order is most readily available where the offending was clearly impairment-driven and the impairment is now being treated. Examples from the cases we have run:

• Common assault by a person with treated bipolar disorder during a manic episode, where ongoing treatment is in place.
• Shoplifting by a person with a major depressive disorder, where the offending was inconsistent with the person's prior history and the treatment plan is documented.
• Property damage by a person with an autism spectrum disorder, where a behaviour support plan is in place and a family support structure exists.
• Low-level drug possession by a person with a co-occurring mental health impairment, where the substance use is functionally linked to the impairment.

The order is harder to obtain where the offence is serious, where the impairment is not currently being treated, or where the defendant has had previous section 14 (or section 32) orders for similar offending. Repeated diversion for the same conduct attracts diminishing returns.

The District Court appeal

A refusal to make a section 14 order in the Local Court can be appealed to the District Court within 28 days. The appeal is heard de novo; the application can be re-run with new psychiatric material. We routinely run section 14 appeals where the Local Court application was let down by a thin report.

One last note

Section 14 is one of the most powerful procedural tools in summary criminal practice in NSW. The order, where it is made, ends the criminal matter. No conviction. No further sentence. A treatment plan in place. For a defendant whose offending was a product of an impairment, it is a route back into a life that is not defined by the charge. The work that supports a section 14 application is the work that turns a clinical condition into a court-ready document, and the lawyer's job is to make sure the document the Magistrate reads is the one that does the persuading.

This note is general information about New South Wales mental health law and is not legal advice for any particular case. For advice on your matter, contact us through our contact page or phone 0421 717 019.

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