The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) came into effect on 29 March 2021 and replaced the Mental Health (Forensic Provisions) Act 1990 (NSW).

There are a number of changes that this new piece of legislation introduces in relation to the previous act. This new act makes amendments and additions to the previous definitions relating to cognitive impairment and mental illness and/or mental condition, now referred to as a “mental health impairment”.

A mental health impairment is now defined as a “temporary or ongoing disturbance of thought, mood, volition, perception or memory” which “would be regarded as significant for clinical diagnostic purposes” that “impairs the emotional wellbeing, judgment or behaviour of the person.” The mental health impairment can come about due to anxiety, affective disorder, psychotic disorder or a substance-induced disorder that is not of a temporary nature.

Under section 5 of the new act, cognitive impairment is defined as “an ongoing impairment in adaptive functioning and comprehension, reasoning, judgment, learning or memory which result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind.” Cognitive impairment can relate to intellectual disability, borderline intellectual functioning, dementia, acquired brain injury, drug or alcohol related brain damage and autism amongst other causes.

Section 15 of the new act outlines a list of factors that a Magistrate may take into account in deciding whether diversion is more appropriate then dealing with the matter otherwise in accordance with the criminal law. These factors include:

• The nature of the mental health or cognitive impairment,
• The seriousness and circumstances of the alleged offence,
• The suitability of the sentencing options available,
• Any changes in the circumstances of the defendant,
• The defendant’s criminal history,
• Any previous mental health diversion,
• Any treatment plan and its contents,
• Whether the defendant is likely to endanger the safety of themselves, the alleged victim, or any other member of the public, and
• Any other relevant factor.

The intersection between mental health, cognitive impairment and the criminal law can be quite complex. Should issues relating to mental health and/or cognitive impairment arise in criminal law proceedings, it is important to ensure you are represented by someone with knowledge and expertise in this area. Our experienced team at Everingham Solomons can look after these issues for you because Helping You is Our Business.

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