Applying for a NSW s 14 mental health diversion
Section 14 allows a Local Court Magistrate to divert an accused with a mental health impairment or cognitive impairment to a treatment or support plan instead of proceeding to conviction. The decision is discretionary and must balance the accused's needs against community protection.
This is an 8-step workflow for applying for a s 14 mental health or cognitive impairment diversion in the NSW Local Court under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
Before you start
- The accused has a mental health impairment (s 4) or cognitive impairment (s 5)
- The matter is in the Local Court's summary jurisdiction
- Instructions have been taken and consent to the application obtained
- A treatment or support plan can be formulated
The workflow
Assess eligibility
Assess whether the client has a mental health or cognitive impairment under the statutory definitions and whether a s 14 diversion is appropriate given the charges.
Obtain a supporting report
Obtain a supporting report from a psychiatrist, psychologist, GP or NDIS provider confirming the impairment and proposing a treatment or support plan.
Formulate the treatment plan
Work with the practitioner to formulate a practical, enforceable treatment or support plan — including appointments, medication, and relapse prevention.
Address the discretionary factors
Prepare submissions addressing the s 15 factors — the nature of the impairment, the seriousness of the offending, the likelihood of reoffending, and the views of the victim.
Liaise with the prosecution
Liaise with the police prosecutor early to flag the s 14 application, provide the report, and identify any objection before the mention date.
File the application and material
File the s 14 application and supporting material through the Local Court Online Registry before the listing to avoid last-minute adjournments.
Appear at the diversion hearing
Appear at the Local Court, tender the report and plan, and address the Magistrate on eligibility, the plan, and community protection.
Manage compliance and breach
Advise the client about the 12-month compliance period. If the client fails to comply, they can be brought back under s 17 and dealt with for the original offence.
What you will have at the end
A s 14 order dismissing the charges subject to a treatment or support plan. If the client complies, no conviction is recorded. Non-compliance within 12 months can lead to the charges being relisted.
Common issues
- Inadequate supporting reports that do not engage with the statutory definitions
- Treatment plans that are too vague to monitor
- Failing to address the s 15 community protection factors
- Not warning the client about the 12-month compliance risk
- Overlooking disclosure obligations under s 99
Run this workflow on a real matter
Quillio drafts the written submissions, treatment plan summary, and eligibility analysis under ss 4, 5 and 15. See /practice-areas/criminal-lawyers or start a free trial.
This workflow is a general guide for NSW. Other jurisdictions have different diversion regimes — confirm the local rules.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
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