What Are Mental Health Applications?

New laws came into effect in 2021 that recognise mental health issues as often being responsible for criminal offending. Why should you be punished for being mentally unwell?

The provisions contained in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) give Magistrates and Judges the power to divert people into care rather than punishing them according to criminal law.

If a successful mental health application is run, you can avoid conviction and a criminal record and even avoid having to go to trial.

Success in such Mental Health Applications is increasingly difficult but if you are somebody who has a real mental health issue and evidence to back up this assertion, give the Mental Health Application option consideration.

The laws include:

1. Section 14 Applications.

Defendants who have a mental health impairment or cognitive impairment can submit a Mental Health Application and go into treatment instead of being sentenced in Court. Even after pleading guilty, criminal charges can be dismissed. Treatment plans are important and you have to follow them.

2. Section 19 Orders: Treatment for Mentally Ill and Mentally Disordered persons.

Anybody who is a mentally ill or mentally disordered (which is generally more serious than a mental health impairment or cognitive impairment) is ordered to be assessed at a mental health facility.

The magistrate can also order the person be discharged conditionally or unconditionally or into the care of a responsible person, or receive community treatment.

If you are assessed in the mental health facility as mentally ill or mentally disordered, you will have the charges against you dismissed after 6 months if you do not offend during that period.

This means there is no criminal record and no finding of guilt.

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3. Section 28: The Mental Illness Defence.

Those who are suffering from a mental health impairment and/or a cognitive impairment at the time of the alleged offence, and who were not aware of the nature and quality of their act or did not know their act was wrong are not criminally responsible for their act.

This is a complete defence to a criminal charge, which means the person must be found not guilty.

4. Part 4: Fitness to Stand Trial.

In rare circumstances, a defendant in a criminal case cannot be made to go to trial. This will occur if you do not understand the charges, or how to plea, or what proceedings are about, or the impact of evidence, or cannot properly instruct their lawyer.

For Commonwealth Offences, the equivalent of a section 14 mental health application is contained in section 20BQ of the Crimes Act 1914.


  • Where you were suffering from a mental illness at the time of the offence (mental illness)
  • Where your conduct was necessary to prevent serious injury or danger (necessity)
  • Where someone threatened or coerced you into committing fraud (duress)

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