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WHAT IS A SECTION 32 APPLICATION ?

A Section 32 application is an application pursuant to s32 Mental Health (Forensic Provisions) Act 1990.  It enables an accused to have certain matters in the Local Court diverted from the criminal justice system.  Section 32 orders normally require ongoing treatment under the supervision of the Court.

For further information about eligibility, treatment plans and other requirements, see the answers to our FAQs below.  Our legal papers, guides and examples of recent section 32 orders can be viewed via the side menu.
 
Do I have to enter a plea first ?

NO. But most Magistrates will insist a plea be entered.
If your lawyer is well-versed with the legislative provisions, the decisions of the higher courts and the Chief Magistrate's Practice Note s/he should be ready to make submissions if asked to enter a plea.


Is a conviction recorded ?

NO.  If a matters is diverted from the criminal justice system pursuant to Section 32 no finding of guilt is made and the charge is dismissed without conviction. However, a Section 32 order is not a "get-out-of-gaol free card" and applications made without proper foundation undermine the legitimacy of the diversionary regime.

While the number of people coming into contact with the criminal justice system is high, less than 2% of charges were diverted pursuant to section 32 in 2016. 
Click here for further discussion in our paper published in the Law Society Journal in December 2017.

 Do I need a lawyer ?

YES.  You need a lawyer for a Section 32 application who understands mental health law, the complexities of mental health and has experience running Section 32 applications in the Local Court.  A thorough understanding of the relevant legislation, the common law and procedure is absolutely essential and knowledge or familiarity of the Magistrate is very important. 

Obtaining a good expert report is critical.  In most cases a letter from a treating GP or psychiatrist will be insufficient.   A number of matters must be the subject of evidence and there needs to be an appropriate treatment plan.   The recent decision of the Supreme Court in DPP v Saunders [2017] NSWSC 760 again confirmed the need for lawyers to pay careful attention to any report and treatment plan tendered in a Section 32 application. 

Your lawyer will need to ensure t
he report contains all the evidence needed to support the application.  A minor omission by the report writer can be fatal. See for example the Supreme Court's decision in Edwards v DPP [2012] NSWSC 105.


"Template" treatment plans are not recommended given the specific treatment needs of an accused and the wide variety of cognitive and mental health impairments upon which an application can be based.

Watch our youtube video

www.youtube.com/watch?v=f4HWtuXIGxI

Who is eligible?

From August 2017, the jurisdictional requirements or eligibility criteria for a Section 32 order were expanded.  They are set out in s.32(1)(a)(i)(ii) & (iii) MHFPAThe provision has broad application and includes persons who are:
  • cognitively impaired;
  • suffering from a mental illness;
  • suffering from a mental condition for which treatment is available in a mental health facillity.
However, people who are "mentally ill" within the meaning of the Mental Health Act 2007 are not eligible for ssection 32 diversion (section 33 of the MHA applies).  Click here for a copy of the legislative provision.

Despite popular belief, satisfying the eligibility criteria is not enough for a section 32 order. As the diversionary regime is discretionary, there are numerous other hurdles and your lawyer should be prepared for each and every one.  See our published papers for a comprehensive discussion.  Click here for copies.
 
Is section 32 diversion more appropriate?

Satisfying the jurisdictional requirements in s.32(1)(a) MHFPA is not enough.  The court must also be persuaded section 32 diversion is more appropriate than dealing with the applicant in accordance with law.

There are many relevant considerations in the court's determination of whether the exercise of the discretion is more appropriate. and some are mandatory.  A failure to lead evidence in relation to some is likely to result in the application being refused.

It is essential advice from an experienced lawyer is obtained.  While there is a view among many that a Section 32 order cannot or will not be made for a major traffic offence, CMH Lawyers have obtained Section 32 orders in Low, Medium and High Range PCA matters and other major traffic offences. In such cases, the community's safety will be a critical consideration and the diversionary regime should not be used as a means to avoid mandatory licence disqualification. 

Where the alleged offences are objectively serious persuading a court to exercise the discretion will be more difficult but not necessarily impossible. 

Evidence of a causal nexus between the cognitive or mental health impairment and the alleged offence is essential, as is a treatment plan and evidence the implementation of it will prevent re-offending.


Where do I get a treatment plan?

There are no "template" treatment plans to download for your section 32 application as some law firms suggest.

A treatment plan needs to be drafted by a psychologist or psychiatrist to ensure an accused's specific treatment needs are addressed comprehensively.     Different considerations apply for those with a cognitive impairment.  Usually there is no treatment available.  A Care Plan may be required.


What are the conditions of discharge ?

It is very rare for a Magistrate to dismiss a charge(s) pursuant to section 32 unconditionally.  In most cases section 32 discharge will be contingent on the accuseed complying with a treatment plan.  A court can supervise a section 32 order for a period of six months.  This may involve regular consultations with a mental health professional for counselling or treatment, abstinence from drugs or alcohol (including urinalysis), medication and, in some cases,  treatment in a facility as an inpatient. 

How do I prepare for a Section 32 application ?

It is your lawyer's responsibility to gather all the evidence required, with your assistance. Retrieving clinical notes from former health professionals, hospitals or legal representatives is often necessary. For young people, talking to parents and other family members will be important.   An appropriate expert should be briefed to prepare a suitable report and treatment plan.

How do I present a Section 32 application ?

An inexperienced lawyer, an unprepared lawyer or an accused appearing without legal representation increases the chances of an application being refused. Your lawyer must be thoroughly familiar with the legislation, the common law, evidentiary law and Local Court procedure.   You do not need a barrister.  If your lawyer is not experienced in section 32 applications, find one that is.


Karen Weeks

BJuris LLB (UNSW)
Principal Solicitor


karen@cmhlaw.com.au
cmhlawyers@bigpond.com 


Last updated 9 Oct 2018
 
 

 
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