MENTAL HEALTH PROVISIONS
A section 32 order pursuant to the Mental Health (Forensic Provisions) Act 1990 NSW (‘MHFPA’) is a way for the Local Court to divert people with particular conditions who have been charged with a criminal offence out of the criminal justice system. Part 3 of the MHFPA contains all provisions relevant to summary proceedings before a magistrate relating to people with intellectual disability, other developmental disabilities and mental disorders.
The Magistrate’s powers are inquisitorial rather than adversarial in nature and the Magistrates, can inform themselves, in any way they see fit. Magistrates often rely on written reports from experts and service providers.
In Chris Kalpage’s experience it is extremely important to obtain a detailed history from the client with a detailed investigation of the medical history and reports from treatment providers and expert witnesses. These reports specifically address the evidentiary requirements of the section. It is imperative that there is a good Treatment Plan in the reports and this cannot be overstated. It will often require a significant amount of liasing between the lawyer and those preparing the reports to ensure the strongest case.
A section 32 application is available in all criminal proceedings in the Local Court that can be dealt with summarily. This includes both summary and indictable offences that are dealt with to finality by a Magistrate.
An application under section 32 can be made at any time during the proceedings, including at the conclusion of a contested hearing. Entering a plea is not required for a Section 32 application.
• A Magistrate must make three decisions to make a section 32 order:
• Is the person eligible to be dealt with under the section?
That is for instance whether the client suffers from a mental condition for which treatment is available. It is not uncommon for a Magistrate to find in favour of this first limb. Often by careful preparation and early discussions with the Prosecution they may not oppose this first limb.
• Is it more appropriate to deal with the person under section 32 than in accordance with law?
This is a discretionary question for the Magistrate to consider as to whether you should be dealt with pursuant to the criminal justice system or under the Mental Health Provisions. This involves a balancing exercise between the purpose of punishment and the public interest in diverting a mentally disordered offender from the criminal justice system. This can be a more difficult exercise and a Magistrate can consider a number of matters, some of which are;
The facts as alleged by the prosecution,
Your Criminal Record,
Whether you have previously been diverted under section 32 or 33 of the Mental Health Provisions,
If so have you complied with your treatment Plan,
The Seriousness of the offence,
The realistically available sentencing outcomes if the matter were to proceed to a conviction.
• If the magistrate decides in favour of section 32, the magistrate must then decide what orders should be made and often that will depend on the expert evidence adduced on your behalf in support of your claim. Special emphasis is often given to the treatment plan obtained from your experts in support of your application.
Section 32 orders mean the charge is dismissed and any conditions imposed, normally last 6 months. If a person breaches any one of the conditions within that period they can be brought back before the court to be dealt with for the original charges in accordance with the normal process of the law.
A Section 33 order is similar to Section 32 but only applies if you are found to be a mentally ill under the definition in the Mental Health Act 2007 (NSW)
Even if a Magistrate was not prepared to exercise their discretion and divert you pursuant to the Mental Health Provisions, but decides to deal with you pursuant to the criminal justice system, the reports tendered will be taken into account in sentencing.
Chris Kalpage has successfully made many s32 applications for client’s who have been charged with criminal matters in the Local Court.