Mental Health and the Law
Picture source: http://www.theguardian.com/society/2010/sep/22/positive-impact-prisons-offenders-personality-disorder
Our most vulnerable where they are most vulnerable: The interaction between the mentally ill and the criminal justice system in NSW
Fifty per cent of all prisoners currently in the NSW criminal justice system suffer from a mental illness.[1] Where rates of mental illness sit at 20% of the general population,[2] the overrepresentation of the mentally ill in the prison system is a reflection of the tendency for the criminal law to punish rather than assist in the treatment of sufferers. Prison and exposure to the criminal justice system are both harmful experiences, which have an adverse effect on the wellbeing of all individuals, specifically those that suffer from or are otherwise predisposed to psychiatric disorders.[3] It follows that law reform should focus on reducing contact between the mentally ill and the criminal justice system. This publication seeks to explore the issue of overrepresentation by examining the role of court processes in contributing to the incarceration of mentally ill defendants, as well the potential for prison environments to be a significant bar to recovery. From this foundation, important alternatives to incarceration will be examined, with an intention to encourage improvements in the NSW criminal justice system and its treatment of the mentally ill.
Why are they there in the first place? Considering the reasons behind overrepresentation
A number of factors influence the overrepresentation of the mentally ill in prisons. An unstable home environment, exposure to abuse and lack of educational opportunities increase the risk of developing many psychiatric disorders, especially schizophrenia and conduct disorder.[4] The combination of mental illness and low socioeconomic status often results in individuals being introduced into the criminal justice system, as they commonly commit summary and public order offences.[5] However, current NSW court systems and legislative schemes ultimately imprison and criminalise these individuals. These systems are the most important factors contributing to overrepresentation that can be addressed through law reform.
If a defendant is charged with a summary offence, they must appear before a Local Court magistrate. As per section 32 of the Mental Health (Forensic Provisions) Act, if the magistrate believes that the defendant may be suffering from a mental illness, they can dispose of the case and discharge the accused from the court into a 6-month treatment plan.[6] This diversionary scheme, while seemingly effective at face value, is grossly underused. As noted by the Law Reform Commission in their recent report, across Local and Children’s Courts, only 1% of defendant cases are dealt with by the application of section 32.[7] As a consequence, individuals who may be suffering from a mental illness and have committed an offence are not given the opportunity to seek treatment, and are instead funnelled through the ordinary trial process, convicted and sentenced to a prison term. The New South Wales Commission also notes that, even when a defendant is discharged into a 6-month treatment plan, this plan is devised predominately by lawyers. They lack the requisite expertise to deal with the particular needs of psychiatrically distressed defendants.[8] Consequently, this diversionary scheme is not conducive to rehabilitation. Sufferers may reoffend and be reintroduced into the criminal justice system.
Defendants appearing before higher courts, specifically the supreme and district courts, experience other issues. The most significant concern facing offenders is the overly complicated interaction between the court and the Mental Health Review Tribunal. Oftentimes when a mentally ill defendant appears before a court, he or she will be found unfit to be tried for their offence.[9] However, the tribunal must review this decision before the trial is officially adjourned and the defendant is detained in a psychiatric institution for treatment and further assessment.[10] As seen in the case of Waszczuk[11] the tribunal can reject the court’s finding of unfitness and send the offender back to be tried. What follows is to-and-fro between the court and the review tribunal, while the defendant remains on remand in prison.[12] In fact, even defendants that have been determined to be unfit to be tried by both the court and the tribunal often are still imprisoned. This is because of widespread shortages in the availability of beds in high security hospitals, such as the NSW Forensic Hospital. The 2015 report of the Mental Health Review Tribunal highlighted this as a serious concern, primarily because prisons are poor environments for the treatment and recovery of the mentally ill.[13]
The conditions inside NSW prisons and why overrepresentation is a problem
NSW prisons are becoming increasingly overcrowded. The total capacity of all NSW correctional centres is 10,960 inmates.[14] As of 2015, the NSW system detains 11,022 inmates.[15] This figure is expected to increase as the prison population continues to expand. This is occurring all while prisons extend their “operational capacities” far beyond the initial number of inmates each correctional centre was built to house.[16] Overcrowding has significant flow on effects. To cope with overcrowding, prisoners must share single cells with another inmate.[17] The consistent lack of privacy and personal space, as well as potentially challenging interactions between troubled and unstable individuals, is extremely detrimental to the wellbeing of inmates.[18] This problem is exacerbated by the increasing amount of time prisoners are expected to spend inside their cells as the number of recreational services and activities available to inmates, such as outdoor exercise in prison yards and the use of telephones, are limited because of increased demand and staff shortages.[19] The inspector of Custodial Services found that in some cellblocks 48 inmates are expected to share a single telephone.[20] As a result, prisoners struggle to contact family and friends, and may be unable to maintain personal relationships while incarcerated.
Access to health services and counselling also suffers from an increase in demand as prisoners face constant delays waiting for treatment, to the point at which their basic needs are not met. For example, inmates awaiting transfer to a secure psychiatric institution can wait up to 3 months or more before receiving treatment.[21] It is clear that this environment is not a good place for any individual, especially vulnerable persons suffering from mental illness. Boredom, isolation, lack of available treatment services and prolonged exposure to violence and tension between inmates are increasingly representative of prison life. It follows that imprisonment can exacerbate existing conditions, and lead to the onset of psychiatric disorders in previously healthy individuals. Therefore, overcrowding both contributes to the overrepresentation of the mentally ill, and creates an environment that poses a considerable threat to the large population of sufferers in correctional centres.
What steps can be taken to address overrepresentation?
Addressing the overrepresentation of the mentally ill is a significant undertaking. Currently, the most appropriate step forward is increasing the scope and efficacy of diversionary programs designed to minimise contact between offenders and the criminal justice system. For example, the New South Wales Law Reform Commission recommends extending the operation of the Court Referral of Eligible Defendants Into Treatment (CREDIT hereafter) diversionary scheme to cover all local courts across New South Wales. CREDIT is an intervention program currently in use at the Burwood and Tamworth Local Courts.[22] It is offered to offenders with a disadvantaged background (including a history of mental illness) who may benefit from following a goal-orientated rehabilitation plan that addresses the root causes of their criminal behaviour. Offenders, over a period of 2 to 6 months (depending on the severity of their case), are given access to counsellors, health services, rehabilitation clinics, accommodation and emergency housing as well as government welfare.[23] The program assists defendants in managing their mental illness and addressing their criminal behaviour in order to prevent them from reoffending in the future.
A more radical development in the NSW court system would be the introduction of a mental health court. A true mental health court is a judicial body that is non-adversarial in nature and focused on treating mentally ill defendants by creating a treatment plan in conjunction with psychiatrists and other clinical professionals. Drawing upon the systems currently in place in the United States, a mental health court would encourage adherence to this treatment plan by steadily withdrawing a defendant’s charges and reducing his or her criminality to match their progress to recovery.[24] However, this system will only function effectively if forensic hospitals have the appropriate funding and the capacity to house and treat mentally ill defendants. Despite the likely expense involved, establishing a mental health court is a wise investment in the future of NSW’s criminal justice system. Studies conducted in the United States, such as the meta-analysis of San Francisco offending rates, show that mental court involvement can reduce the likelihood of defendants committing new violent criminal offences by up to 55%.[25]
The overrepresentation of the mentally ill in prisons is a serious issue that puts vulnerable individuals in an environment that punishes them for behaviour that may be out of their control. Prisons lack the necessary resources to treat offenders and aid them in their recovery. As a consequence, prisoners are released back into the community with no improvement in their state of mind and no way for them to seek support and assistance. They will reoffend, victims of their actions will be hurt and the cycle will repeat itself indefinitely. The NSW court system must adapt to address the specific needs of mentally ill offenders in order to break this cycle and give these people the opportunity to recover and make a fresh start. Whether this will be achieved through diversionary schemes, increasing funding to forensic hospitals or introducing a mental health court is ultimately a decision that rests in the NSW executive. However, this decision must be made as soon as possible.
References
[1] Australian Institute of Health and Welfare, Mental health of prison entrants (2016), Authoritative information and statistics to promote better health and wellbeing
[2] Black Dog Institute, Facts and figures about mental health and mood disorders, (October 2012) <http://www.blackdoginstitute.org.au/docs/Factsandfiguresaboutmentalhealthandmooddisorders.pdf>
[3] New South Wales Law Reform Commission, People with cognitive and mental health impairments in the criminal justice system: diversion, Report No 135 (2012) 31
[4] Clare Oakley et al, ‘Childhood adversity and conduct disorder: A developmental pathway to violence in schizophrenia’ (2016), Schizophrenia research, 2
[5] Commonwealth Parliament of Australia, Chapter 13 – Mental Health and the criminal justice system
[6] Mental Health (Forensic provisions) Act (NSW) s 32(3)
[7] New South Wales Law Reform Commission, People with cognitive and mental health impairments in the criminal justice system: diversion, Report No 135 (2012) xx
[8] Commonwealth Parliament of Australia, Chapter 13 – Mental Health and the criminal justice system
[9] Mental Health (Forensic provisions) Act (NSW) s 14
[10] Ibid s 29
[11] R v Waszczuk [2012] NSWSC 380
[12] New South Wales Law Reform, People with cognitive and mental health impairments in the criminal justice system: Criminal responsibility and consequences, Report no 138 (2013) 133
[13] Mental Health Review Tribunal, Annual Report 2014/2015 (30 June 2015) Mental Health Review Tribunal Website, pg 10, <http://www.mhrt.nsw.gov.au/assets/files/mhrt/pdf/MHRT%20Annual%20Report%202015.pdf>
[14] John Paget, ‘Full House: The growth of the inmate population in NSW’, Inspector of Custodial Services, Parliament of NSW, (2015), 31
[15] Ibid 31
[16] Ibid 27
[17] Ibid 12
[18] Ibid
[19] John Paget, ‘Full House: The growth of the inmate population in NSW’, Inspector of Custodial Services, Parliament of NSW, (2015), 58
[20] Ibid 12
[21] Ibid 53
[22] NSW Department of Justice and Attorney General, CREDIT: Court Referral of Eligible Defendants Into Treatment (2009) NSW Department of Justice and Attorney General Website
[23] Lily Trimboli, ‘NSW Court Referral of Eligible Defendants Into Treatment (Credit) Pilot Program: an evaluation’ (2012) 5 159 Crime and Justice Bulletin (NSW), 6
[24] Dale E. Mcniel & Renee L. Binder, ‘Effectiveness of a Mental Health Court in Reducing Criminal Recidivism and Violence’ (2007) 164 American Journal of Psychiatry 1395, 1401
[25] Dale E. Mcniel & Renee L. Binder, ‘Effectiveness of a Mental Health Court in Reducing Criminal Recidivism and Violence’ (2007) 164 American Journal of Psychiatry 1395, 1401
