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  • Successful section 32 applications need a comprehensive treatment plan.
  • Treatment plans must specify who is providing or supervising the treatment and where that treatment is to take place.
  • The treatment provider or supervisor should undertake to report non-compliance with the plan during the duration of the order.

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 [2017] 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.

A major component of the s 32 mental health application is a report from a psychologist or psychiatrist which addresses the two limbs of s 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 (s 32 (1)(a)).

The second limb of s 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 (s 32 (3)).

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