Section 14 mental health diversion in the NSW Local Court: how it works, and who qualifies.

What section 14 is, and why it replaced section 32.

Section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) is the current form of what many people still call a section 32. The old provision, section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), was replaced when the 2020 Act commenced in March 2021. The idea behind both is the same. Where a person before the Local Court has a mental health or cognitive impairment, the court can deal with the matter outside the ordinary path of conviction and punishment, and instead divert the person into treatment or support.

If a section 14 application succeeds, the magistrate dismisses the charge and discharges the person. That can be unconditional, or it can be on conditions, most often a plan for treatment and support that runs for a set time. There is no conviction and no criminal penalty. For a person whose offending is tied to an untreated illness, that outcome does more for public safety than a fine ever would, because it addresses the cause rather than the symptom.

Who is eligible: mental health or cognitive impairment.

The gateway is the impairment, and the Act defines two kinds. A mental health impairment, defined in section 4, is a temporary or ongoing disturbance of thought, mood, volition, perception or memory that is significant and impairs the person's functioning. It takes in conditions such as anxiety disorders, depression, post-traumatic stress disorder and psychotic disorders. It expressly excludes a state caused only by the voluntary use of drugs or alcohol.

A cognitive impairment, defined in section 5, is an ongoing impairment of comprehension, reasoning, judgment, learning or memory that results from a condition such as an intellectual disability, a developmental disorder including autism, dementia, an acquired brain injury or a neurological disorder. The impairment does not have to be the cause of the alleged offence, but the court will want to understand the connection between the condition and either the offending or the person's ongoing needs. That connection is usually shown through a report from a psychologist or psychiatrist.

What offences can be dealt with under section 14?

Section 14 lives in the Local Court. It applies to summary offences and to indictable offences that are being dealt with summarily. It is not available once a matter proceeds on indictment in the District or Supreme Court. There is no closed list of offences that cannot be diverted, but the seriousness of the alleged offence is one of the things the court weighs, and a magistrate will take more persuading on a serious matter than a minor one. A charge that names real violence, or that carries a heavy maximum, is harder to divert, though not impossible where the impairment is significant and the plan is strong.

What the Local Court weighs under section 15.

Section 15 sets out a list of matters the magistrate may take into account, and the list is not closed. They include the nature of the impairment, the seriousness and circumstances of the alleged offence, the person's criminal history, whether a treatment or support plan has been prepared and whether it is workable, whether the person is a danger to themselves or others, and what would be likely to happen if the matter were dealt with by sentence instead. Behind those factors sits a balancing exercise. The court weighs the public interest in diverting a person into treatment against the public interest in the offence being dealt with in the ordinary way. That balance was described by the Court of Appeal in DPP v El Mawas, and it remains the frame through which a magistrate approaches the discretion.

The practical lesson is that a section 14 application is won on the plan. A short letter saying the person has anxiety will not do it. What moves a court is a clear report that sets out the diagnosis, ties it to the offending, and lays out who will treat the person, how often, and what happens if a session is missed. The stronger the plan, the more comfortable the court is that diversion protects the community rather than putting it at risk.

Does a section 14 dismissal mean you are guilty?

No. A section 14 order is not a finding of guilt, and it is not a conviction. It is also not an acquittal. The court does not decide whether the offence is proved at all. It steps around that question and diverts the person on the basis of the impairment and a plan to manage it. Because there is no conviction, the order does not carry the record consequences that a conviction does, which matters for work, travel and licensing. That is one of the main reasons the application is worth making where the grounds are there.

Conditions, and what happens if they are broken.

A section 14 order can be made on conditions, and the usual condition is compliance with a treatment or support plan. The conditions can run for up to 12 months. Section 16 is the enforcement provision. If the person fails to comply with a condition within that 12 month period, the court can call the person back and deal with them for the original offence as though the diversion had not been granted. After 12 months, that power falls away, and the dismissal stands.

This is why the plan has to be realistic. An order built around appointments the person cannot keep, or a service with a long waiting list, sets the person up to be brought back. A good application proposes conditions the person can actually meet, so the diversion holds.

How section 14 differs from a section 10.

The two are often confused because both can end without a conviction. They work differently. A section 10 under the Crimes (Sentencing Procedure) Act 1999 (NSW) is a sentencing outcome. The court finds the offence proved, then chooses not to record a conviction. A section 14 order is not a sentence at all. The court does not decide guilt; it diverts the person before that point on the basis of the impairment. Section 14 needs the medical grounds; a section 10 does not. Where the grounds for section 14 exist, it is usually the stronger outcome, because it avoids a finding of guilt as well as a conviction.

What to do if you think section 14 applies.

Get advice early, and get the report started early. A section 14 application stands or falls on the medical material, and a good report takes time to prepare. The first steps are to say nothing about the substance of the allegation until you have advice, in line with our note on the police interview and the ERISP, and to gather the treatment history that a psychologist or psychiatrist will need. Our note on the first thirty days of a matter explains why the early weeks decide so much. Even where the charge itself, such as a common assault, looks minor, a section 14 outcome can be the difference between a record and none.

Primary sources: diversion is governed by sections 12 to 16 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), with the definitions of impairment in sections 4 and 5, the power in section 14, the factors in section 15, and the breach power in section 16. The balancing approach comes from DPP v El Mawas [2006] NSWCA 154, searchable on JADE. The section 10 comparison is drawn from the Crimes (Sentencing Procedure) Act 1999 (NSW).

Common questions

What is a section 14 application?

It asks the Local Court to deal with a charge under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) instead of by conviction and sentence. If it succeeds, the court dismisses the charge and discharges the person, unconditionally or on conditions such as a treatment plan, for up to 12 months. There is no conviction and no penalty. It replaced the old section 32 in March 2021.

Who is eligible for a section 14 diversion?

A person with a mental health impairment, a cognitive impairment, or both, as defined in sections 4 and 5. Mental health impairment covers conditions such as anxiety, depression, post-traumatic stress and psychosis. Cognitive impairment covers intellectual disability, dementia, acquired brain injury and autism. The impairment need not have caused the offence, but the court will look for a real connection to the offending or the person's needs.

What offences can be dealt with under section 14?

Only matters in the Local Court, which means summary offences and indictable offences dealt with summarily. It is not available for a matter that proceeds on indictment. There is no fixed list of excluded offences, but the seriousness of the offence is weighed, and a serious charge takes more persuading.

What does the Local Court consider on a section 14 application?

The section 15 factors, including the nature of the impairment, the seriousness of the offence, the person's history, whether a treatment plan has been prepared and is workable, and whether the person is a danger to anyone. The magistrate weighs the public interest in diversion against the public interest in the ordinary criminal process, the balance set in DPP v El Mawas.

Does a section 14 dismissal mean you are guilty?

No. It is not a finding of guilt, not a conviction, and not an acquittal. The court does not decide whether the offence is proved. It diverts the person on the basis of the impairment and a plan. Because there is no conviction, it does not carry the record consequences of a conviction.

Can a section 14 order be breached?

Yes. If the person fails to comply with a condition within 12 months, section 16 lets the court call them back and deal with them for the original offence as if the diversion had not been granted. After 12 months the dismissal stands. A workable plan is what keeps the order in place.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 28 August 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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