What is a section 32 Order? – Analysis of the Mental Health (Forensic Provisions) Act 1990 (NSW)

By Yavin Kumar @ Sydney Criminal Defence Lawyers

Section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) is an efficient tool available to Magistrates in New South Wales Local Courts to divert people with intellectual and mental conditions away from the criminal justice system. An order made under section 32 allows a Magistrate to recognise the issues associated with the offender’s mental health, and provide methods towards helping the offender to get any help or specialist treatment that they might require, in order to live positive and lawful lives.

A section 32 application can be made at any stage during the course of criminal court proceedings, which includes any period of time prior to a formal plea being entered. An application can also be made in relation to indictable criminal charges that are being dealt with summarily in a Local Court. If a section 32 mental health order is given to an offender, this will mean that the offender will by-pass any sentence that otherwise would have been given under the criminal justice system, and will instead enter a court-mandated treatment plan. No criminal conviction will be recorded against the offender so long as they agree to participate in the treatment plan.

Pursuant to section 4(1) of the Mental Health Act 2007 (NSW), a mental illness means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person, and is characterised by any of the following symptoms in the person:

• Delusions;
• Hallucinations;
• Serious disorder of thought form;
• Severe disturbance of mood;
• Sustained or repeated irrational behaviour showing any of the above symptoms.

Various mental health conditions such as anxiety, depression, severe substance abuse, bipolar disorder, schizophrenia and anti-social personality disorder fall within the ambit of the definition of a mental illness for the purposes of the Act. Generally speaking, a mental health condition is a mental health issue that can be treated through a psychologist and/or counselling.

Furthermore, section 14(1) of the Mental Health Act also outlines the legal definition of a mentally ill person. That is, a person is considered to be mentally ill if he or she is suffering from a mental illness, and because of this illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary:

• For the person’s own protection from serious harm; or
• For the protection of others from serious harm.

Through both of these definitions, section 32 of the Mental Health (Forensic Provisions) Act provides that if it appears to a Magistrate at the commencement or at any time during the course of the hearing of proceedings:

• That the defendant is:
• Cognitively impaired; or
• Suffering from mental illness; or

• Suffering from a mental condition for which treatment is available in a mental health facility; but is not a mentally ill person, and

• That, on an outline of the facts and/or any other relevant evidence, it would be more appropriate to deal with the defendant in accordance with the Mental Health Act than otherwise is accordance with criminal law,

Then the Magistrate may adjourn proceedings, grant the defendant bail, or make any other order as they consider appropriate. Alternatively, a Magistrate can make an order which dismisses the charge and discharge the defendant into the care of a responsible person, unconditionally or subject to conditions, or create a condition that the defendant attend a person (psychologist or other mental health specialist) or place for assessment or further support.

Magistrates are often directed to rely on the common law case of Director of Public Prosecutions v El Mawas [2006] NSWCA 154 in deciding whether a matter falls within the ambit of section 32. For the purposes of the section, a Magistrate must be satisfied that:

1. A defendant is eligible to be dealt with under the section;
2. Having regard to the facts and other materials, if it is more appropriate to deal with the matter under section 32 as opposed to other pieces of law;
3. If a Magistrate’s answer to the above questions is ‘yes’, then what order should be made by the Court under his/her power.

Of course, there is also a public interest test and an analysis of the seriousness of the offence that must be satisfied, as a successful section 32 essentially results in no finding of guilt from the defendant. The public interest for the defendant to be dealt with under law needs to be balanced against the benefit to the public for the defendant having a meaningful treatment plan and necessary support in order to help to address their mental condition. Further to this, the public interest must also be protected in the sense that there must be surety, as far as possible, that same or similar conduct will not occur again in the future by the defendant.

Overall, applications under the Mental Health (Forensic Provisions) Act 1990 (NSW) are often complex applications that require specialist knowledge into this specific area of law, and also involve specialised medical evidence in order to be successful. If an offender is charged with a criminal offence and there is evidence to suggest that they were suffering from a mental or intellectual illness at the time of having committed the offence, it is a great idea to seek legal advice as soon as possible.

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