Overcoming the stress of being arrested

The Mental Health (Forensic Provisions) Act 1990 provides a mechanism for magistrates to deal with persons with mental health disorders and intellectual disability otherwise than in accordance with law. The provisions only apply to summary offences, or to indictable offences triable summarily. The provisions do not apply to committal proceedings.

Reasons must be given for any decision to make or refuse to make any order pursuant to these sections. It is no longer mandatory to disqualify oneself from hearing a matter if a s 32 order is refused, but care must be exercised.

At those courts where the service is available, the clinical nurse consultant will provide a report to assist the court’s determination of the matter. Frequently, if there is not a diagnosis of mental illness the nurse may identify an intellectual disability.

For a Magistrate to make an order under s32 she or he must be satisfied broadly of two things:

  • Firstly, that the defendant has a developmental disability (or a mental illness or a mental condition for which treatment is available). Intellectual disability falls within the category of developmental disability
  • Secondly, that it would be more appropriate to deal with the defendant through a s32 order and diversion into treatment and support, than otherwise through the normal criminal law process of pleas, hearings, sentencing and the like. In deciding whether it is more appropriate, the Magistrate needs to balance two competing public interests namely, the public interest in a person convicted of a criminal offence facing the full weight of the law against the public interest in diverting, supporting and treating a person with intellectual disability not to re-offend and thereby protect the community

If a s32 order is made (assuming it is conditional, which almost all are) the Magistrate will dismiss the charges and discharge the defendant subject to conditions, such as he or she must:

  • comply with their treatment plan (already tendered to the Court)
  • take prescribed medication
  • abide by all reasonable directives of medical and support staff
  • reside in a specified place

Section 32 orders normally last 6 months. If a person breaches any one of the conditions within those 6 months (and it is reported to the Court) then they can be brought back before the court to be tried for the original charges in accordance with the normal process of the law.

For a useful overview of the exercise of the court’s discretion: see DPP v El Mawas [2006] NSWCA 154.

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