Article Category - Family Law Criminal Law and Traffic Offences By Angus Edwards 18 February 2021

Changes are being made to the way mental health is being dealt with in the Local and Children's Courts in relation to criminal matters.

The new Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) is expected to commence on 29 March 2021 and will replace the current Mental Health (Forensic Provisions) Act.

The main changes worth noting from the previous Act include:

  • New definitions in relation to mental health and cognitive impairment;
  • An increase to time limitations for the court to call back a person for failure to comply with an order; and
  • A new list of factors to help the Court consider if a diversion from the normal court process is appropriate.

Section 32 of the Act allows the Court to dismiss charges without following the normal court procedures if the person has a cognitive impairment or mental health impairment.

A person has a mental health impairment where the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and the disturbance would be regarded as significant for clinical diagnostic purposes, and the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.

The list of factors included in this new Act will give Magistrates more guidance to support their decision to divert a matter where appropriate.

Mental health is affecting more Australians every year, with Beyond Blue figures estimating that one in eight Australians is currently experiencing high or very high psychological distress.

It's pleasing to see these changes being made to support the court to be able to divert people affected by serious mental health conditions to a more appropriate option such as treatment.

If you need support or advice in relation to a criminal matter, contact our experienced team on 1800 650 656. We're here to help!

Shanaya Stapleton | Law Graduate & Angus Edwards | Principal