If mental illness or cognitive impairment contributed to an alleged offence, NSW law may allow a court to dismiss the charge and divert the person into treatment instead of recording a conviction. This is called a section 14 order.
This guide explains how a section 14 order actually works: who qualifies, what a magistrate has to consider, what conditions can be attached, and how it’s different from simply being found guilty and given a lenient sentence. It also covers what changed when this provision replaced the old “section 32” order in 2021, because a lot of what’s written online about “section 32” is now out of date.
None of this is a shortcut and it isn’t automatic. A section 14 application still has to be built and argued, usually with medical evidence and a treatment plan behind it, alongside the ordinary steps in any criminal court matter such as bail and case preparation. Understanding how the process works is the first step to knowing whether it’s available to you.
At a glance
- What it can do: dismiss the charge without a conviction or finding of guilt, where the person has a relevant mental health or cognitive impairment.
- Where it applies: the Local Court, for summary offences and indictable offences being dealt with summarily.
- The legal test: it must appear to the magistrate that the person has, or had at the time of the alleged offence, a mental health impairment or cognitive impairment. This is defined in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), which weighs a list of factors before making an order. The magistrate must also consider that it would be more appropriate to deal with the person this way than through the ordinary process, and may weigh a list of factors in deciding that.
- The one thing to do now: get advice before your first or second court date. A section 14 application is far stronger when it’s prepared early, with proper clinical evidence, rather than raised as a last resort on the day.
What is a section 14 order?
A section 14 order is a court order that dismisses a criminal charge and discharges the defendant, either unconditionally or into a treatment plan, instead of proceeding to a conviction. It’s made under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), and it exists because the ordinary sentencing process isn’t always the right response when a person’s offending is genuinely connected to a mental health condition or a cognitive impairment.
Making a section 14 order is not a finding of guilt. The magistrate isn’t deciding the person did or didn’t commit the offence: the charge is simply dismissed. No conviction is recorded, and the person isn’t sentenced.
That doesn’t mean the process disappears without a trace. A previous section 14 order can be relevant if the same person applies for a further order, because it is one of the matters a magistrate may consider. It’s a meaningfully different outcome from a conviction, but it’s not the same as the charge never having existed.
Who can apply for a section 14 order?
Anyone charged with a summary offence, or an indictable offence being dealt with summarily in the Local Court, can apply, provided there’s evidence connecting a mental health impairment or cognitive impairment to the offending. The application is usually made by the defence, though a magistrate can also raise it.
The Act defines the two categories precisely, and the difference matters because the evidence looks different for each:
| Category | What it means | Typical evidence |
|---|---|---|
| Mental health impairment | A temporary or ongoing disturbance of thought, mood, volition, perception, or memory that is clinically significant and affects the person’s judgment, behaviour, or emotional wellbeing | A psychiatrist’s or psychologist’s report; treating GP records; hospital admission history |
| Cognitive impairment | An ongoing impairment in adaptive functioning, together with an ongoing impairment in comprehension, reasoning, judgment, learning or memory, resulting from damage to or dysfunction, developmental delay or deterioration of the brain or mind. It can include intellectual disability, dementia, autism or foetal alcohol spectrum disorder. | A neuropsychological assessment; a diagnosis on file; a support coordinator’s or treating specialist’s report |
Substance intoxication on its own, without an underlying condition, generally doesn’t meet either test. Where alcohol or drug use is part of the picture, it needs to sit alongside a genuine diagnosis for a section 14 application to have real prospects.
What can a magistrate consider before making the order?
A magistrate may consider a specific list of factors set out in section 15 of the Act. A strong diagnosis alone does not guarantee an order will be made. The magistrate may consider:
- The nature of the person’s mental health impairment or cognitive impairment.
- The nature, seriousness, and circumstances of the alleged offence.
- Whether the sentencing options that would otherwise be available are actually suitable, given the impairment.
- Any relevant change in the person’s circumstances since the alleged offence (for example, starting treatment, criminal history, engaging a support worker, or stabilising on medication).
- Whether the person has previously been the subject of an order under this Act, or under the old section 32 of the repealed Mental Health (Forensic Provisions) Act 1990.
- Whether a treatment or support plan has already been prepared, and what’s actually in it.
- Whether the person is likely to endanger the safety of themselves, a victim or any other member of the public.
That last point is where courts are genuinely cautious, particularly in domestic violence matters. A section 14 order isn’t off the table for a DV-related charge, but a magistrate needs to be satisfied the treatment plan properly manages any ongoing risk, and vague assurances rarely get past this stage. A well-prepared application usually addresses this directly, rather than leaving it for the court to infer.
What conditions can be attached to a section 14 order?
A magistrate can dismiss the charge unconditionally, or attach conditions: most commonly a requirement to attend a nominated treatment provider, place, or support service for a set period. The order can also place the person in the care of a “responsible person”, often a treating clinician, a family member, or a support coordinator who takes on a degree of oversight.
In practice, conditions are shaped around whatever treatment plan was put to the court.
Conditions may include regular treatment appointments, engagement with a mental health or disability support service, medication compliance, or case management through a community mental health team.
The specifics vary from case to case because the whole point of the mechanism is that it’s tailored to the person, not a standard penalty.
What happens if the conditions aren’t followed?
If a person does not comply with a conditional section 14 order, the court can call them back within 12 months. If the court is satisfied there has been a failure to comply, it can deal with the original charge according to law. This is why a treatment plan needs to be realistic and sustainable.
This is one of the strongest reasons to get the application right the first time, with a plan the person can genuinely sustain, rather than one that sounds impressive on paper but sets them up to fail.
How is this different from section 32 of the old Act?
“Section 32” was the equivalent provision under the now-repealed Mental Health (Forensic Provisions) Act 1990 (NSW). It was replaced by section 14 of the current Act, which commenced on 27 March 2021. If you’ve seen older articles, forms, or even court paperwork referring to a “section 32 application,” they’re describing the predecessor to what is now a section 14 application. The underlying idea, diversion instead of conviction, is largely the same, but the legal test changed.
The key difference is definitional. The old Act relied on the broader, less precisely defined concept of “mental illness” and “mental condition.” The current Act replaced that with the specific, clinically grounded definitions of mental health impairment and cognitive impairment set out above, a change intended to give courts and clinicians a clearer, more consistent standard to apply. Some practical mechanics also changed, including how treatment plans and reporting are handled.
If your matter, or a family member’s matter, started under the old regime and is still working through the court system, it’s worth confirming with a solicitor which version of the law actually applies to your hearing.
Your rights and what you can do now
If you’re facing a charge and mental health or cognitive impairment is part of the picture, there are concrete steps that put you in a stronger position, most of them before you ever get to court.
- You have the right to seek legal advice before your first court date. You don’t have to handle a mental health application alone, and early advice shapes what evidence gets gathered. If you’re also dealing with a bail application while your section 14 application is being prepared, tell your solicitor about your treatment history early, as it can support both.
- Start building the clinical picture now. If you’re already seeing a psychiatrist, psychologist, GP, or support coordinator, ask them to keep clear records of your diagnosis, treatment history, and how your condition relates to what happened. This becomes the backbone of an application.
- If you don’t have a treating clinician yet, get one. A section 14 application is far stronger with an existing, documented treatment relationship than with a one-off assessment arranged for court.
- Ask about a treatment or support plan early. Courts respond to a plan that’s already underway, not just a promise to start one. This can include NDIS supports, community mental health services, or private treatment.
- Keep every appointment and every piece of paperwork. Attendance records, letters from your treatment team, and discharge summaries all matter later.
- You are not required to plead guilty to apply. A section 14 order dismisses the charge without any finding: it isn’t a guilty plea in disguise, and it shouldn’t be treated as one.
- You still have the presumption of innocence. A mental health application doesn’t concede the offence occurred; it’s argued on the basis that, whatever the outcome, treatment rather than conviction is the appropriate response.
How a lawyer could help your case
A section 14 application is won or lost largely on preparation, and that’s where a solicitor’s involvement tends to matter most.
- Building the evidentiary case. A lawyer can help identify what clinical evidence is actually persuasive to a magistrate: a properly scoped psychiatric or psychological report addressing the link between the impairment and the offending is far more useful than a general diagnosis letter.
- Coordinating a realistic treatment plan. Courts respond to plans that are specific, funded, and already in motion. A solicitor can work with your treatment team to put together something the court can actually rely on.
- Addressing the risk factors directly. In cases involving allegations of violence or a domestic relationship, a lawyer can make sure the application squarely addresses safety, rather than leaving the magistrate to draw their own conclusions.
- Navigating a prior order or a breach. If this isn’t the first application, or a previous order was breached, the case for a fresh order needs to explain what’s genuinely changed. That’s a harder argument to run without legal guidance.
- Arguing eligibility where it’s contested. Prosecutors sometimes oppose a section 14 application, particularly for more serious charges. A lawyer familiar with how local courts approach these applications can respond to those objections with the right evidence and submissions.
Every case is different, and whether a section 14 application is realistic depends on the strength of the medical evidence, the nature of the charge, and the treatment plan available. Getting advice early is what makes the difference between a well-prepared application and one that’s rushed together before a court date.
Frequently Asked Questions
Is a section 14 order the same as being found not guilty?
No. A section 14 order dismisses the charge without any finding of guilt or innocence being made either way. It’s a different outcome entirely: the court isn’t deciding what happened, it’s directing the person toward treatment instead of continuing the prosecution.
Does a section 14 order show up on a criminal record?
No conviction is recorded. However, a previous section 14 order is something a magistrate may consider if you apply again. Get advice about how it affects a particular licence or working-with-children check.
Can I get a section 14 order for a domestic violence charge?
It’s possible, but courts scrutinise these applications closely because of the safety factor the magistrate may weigh. An application is much stronger when it’s supported by a comprehensive treatment plan that specifically addresses the risk of further harm, not just the underlying condition in general terms.
What offences are excluded from section 14?
Section 14 only applies to summary offences and to indictable offences that are being dealt with summarily in the Local Court. It isn’t available for matters that must proceed to trial in the District or Supreme Court, which typically covers the most serious indictable offences.
Can I apply for a section 14 order more than once?
Yes, in principle. A magistrate may consider whether you’ve previously had an order under this Act or the old section 32, but a prior order doesn’t automatically rule out a further one. That said, courts are far more cautious with a repeat application, especially where an earlier order was breached, and the case needs to explain what’s genuinely different this time.
Do I need a lawyer to apply for a section 14 order?
You’re not legally required to have one, but a section 14 application depends heavily on how the clinical evidence and treatment plan are put together and presented. Getting advice early, ideally before your first court appearance, gives you the best chance of the application being properly prepared rather than assembled at short notice.
How O’Brien Criminal & Civil Solicitors can help
O’Brien Criminal & Civil Solicitors has represented clients through mental health and cognitive impairment applications across a wide range of charge types, including matters where public safety concerns had to be addressed head-on. Our team is led by an Accredited Specialist in Criminal Law, a credential held by fewer than 6% of solicitors in NSW, and we work with treating clinicians early to build the evidence a section 14 application actually needs.
If mental health or a cognitive impairment is part of what’s happened in your case, or a family member’s, the earlier we’re involved, the more options are usually available.
Request initial advice (no-obligation) via the form below or call us on (02) 9261 4281.
This content is for general information purposes only and does not constitute legal advice. You should seek independent legal advice relevant to your specific circumstances.
