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Section 32 applications under the Mental Health (Forensic Provisions) Act 1990 (NSW) do not result in you being locked up in a mental health institution, contrary to a common mistaken belief. Rather, a section 32 application can be made in the Local or District Court at any time during your criminal proceedings and if you are successful in that application, the Court can divert you out of the criminal proceedings and either:

  • into the care of a responsible person (unconditionally or subject to conditions);

  • on the condition that the defendant attend on a person or at a place specified by the magistrate:

    • for assessment and/or treatment of the defendant’s mental condition or cognitive impairment, or

    • to enable the provision of support in relation to the defendant’s cognitive impairment, or

    • unconditionally.

Being dealt with under section 32 of the Mental Health (Forensic Provisions) Act 1990, requires the defendant to satisfy a two-limb test. The first limb of the section 32 inquiry requires the Court to be satisfied that you are eligible to be dealt with under this provision i.e. you are suffering from a cognitive impairment, mental illness or mental condition for which professional treatment is available in a mental health facility, but you are not considered a mentally ill person within the meaning of the Mental Health Act 2007. Section 33 applies to an accused person who is mentally ill within the terms of the Mental Health Act.

In addition to finding that the defendant is eligible to be dealt with under section 32 of the Act, the Court must also exercise a very wide discretion and determine whether “it would be more appropriate to deal with the defendant in accordance with section 32 than otherwise in accordance with law.” It is this second limb of the test where most defendants find their section 32 applications fail.


When exercising discretion under the second limb, the Court takes into account a variety of factors, including:

  • The seriousness of the offence and whether you have any previous history.

  • Whether you are receiving treatment from a mental health professional, and if so, what is the content and effectiveness of the treatment plan.

  • The limitation period of the section 32 order i.e. whether it is appropriate to subject you to an order that cannot exceed 6 months.

  • Whether there is a causal connection between your mental condition and the criminal conduct, (although it is not necessary to establish to a causal connection).

  • What sentencing options are available in the event the defendant is dealt with according to criminal law.

Section 32 applications are often complex and require expert evidence to be provided to the Court before the application is made. It is recommended you obtain legal advice and assistance to gather evidence and have your lawyer prepare submissions on your behalf. At KF Lawyers, we have experienced lawyers who appear in Court to run section 32 applications for clients. If you think you are eligible for a section 32 application or wish to obtain further legal advice about this area of law, please contact KF Lawyers.

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