Section 32 mental health treatment plans – NSW Supreme Court clarifies requirements
In a recent appeal by the Director of Public Prosecutions, the Supreme Court has clarified what is required by legislation in section 32 mental health treatment plan applications. (See DPP v Saunders  NSWSC 760.)
Section 32 of the Mental Health (Forensic Provisions) Act 1990 gives the court the power to divert a defendant into the care and treatment of a mental health professional, generally for a period of six months, rather than dealing with them according to the criminal law.
Points to be addressed in report from psychologist or psychiatrist
A major component of the section 32 mental health application is a report from a psychologist or psychiatrist which addresses the two limbs of section 32, namely that at the time of the alleged offence the defendant was developmentally disabled, suffering from a mental illness or suffering from a mental condition for which treatment is available in a mental health facility (section 32 (1) (a)).
The second limb of section 32 is that the report must show how the mental illness contributed to the alleged offending behaviour.
Importantly, the report must also have a treatment plan, which forms the basis of the order made by the court (section 32 (3)).
Defects lead to rejection of section 32 mental health application
In Mr Saunders’ case a report and treatment plan were provided, but no particular mental health provider was named to provide the treatment, nor was a place nominated where that treatment would occur.
The local court granted the section 32 application and the DPP appealed on the point that the treatment plan did not comply with the legislation.
The appeal was upheld, with Hulme J noting that section 32 (3) (b) required that “…the defendant attend on a person or at a place specified by the Magistrate…”
The matter was remitted to the local court to be dealt with according to the criminal law.
Place of treatment and name of physician must be specified
In light of Saunders, in order for a section 32 mental health treatment plan to be accepted by the court as an alternative to criminal proceedings, it is necessary for that treatment plan to name the psychologist or psychiatrist providing the treatment and the place where that treatment is to occur.
It is also necessary for the doctor to undertake to supervise the defendant and report any breaches of the order to the court if and when they occur (section 32 A).
Other practical tips on section 32 mental health applications and submissions
- In general, the psychiatrist or psychologist should acknowledge in the body of the report that they have read and will be bound by the Expert Code of Conduct set out in the Uniform Civil Procedure Rules 2005 – Schedule 7.
- The expert or treatment provider should attach a full CV.
- Submissions from a lawyer should focus on how the mental illness contributed to the alleged offending behaviour, drawing on the opinion of the expert (the second limb).
- The submission should identify the degree of seriousness of the mental illness. Some magistrates will rate some mental conditions as being more serious than others, for example florid psychotic symptoms versus mild depression or anxiety.
What magistrates consider when assessing section 32 applications
In considering whether or not to approve a section 32 mental health treatment plan, the magistrate will assess how “bizarre” the defendant’s conduct was, whether that behaviour indicated the presence of mental illness and whether a section 32 treatment plan is appropriate in the circumstances, given the seriousness of the offence.
Fairness and appropriate care for people with mental illnesses and developmental disabilities
Lawyers, prosecutors, defendants and their families should all bear in mind that the legislation exists for a good reason – to assist people with mental illnesses and developmental disabilities and to make sure they are treated fairly by the law.
We all have a duty, courts included, to make sure that these people receive the treatment and care they need.
[Editor’s note – in 2020 the Mental Health (Forensic Provisions) Act 1990 was replaced by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. For more information, please see Section 32 Mental Health Act provisions replaced by new legislation in NSW.]