Applying the Amended Mental Health (Forensic
Provisions) Act 1990 and Rethinking the Defence of Mental Illness
John Feneley
Deputy President, Mental Health Review
Tribunal
July 2009
The following paper has been prepared
for the Legal Aid Commission's July 2009 Criminal Law Conference. It provides a
brief overview of the main changes introduced by the Mental Health Legislation
Amendment (Forensic Provisions) Act 2008 on 1 March 2009 and an overview of the
forensic mental health system in New South Wales. It focuses on changes made to
the role and functions of the Mental Health Review Tribunal and on developments
in the care, treatment and detention of forensic patients in New South
Wales. The paper is based on similar articles which appeared in the June
edition of the NSW Law Society Journal and the April issue of the Judicial
Officer's Bulletin.
***********
The NSW forensic mental health system is concerned with managing and
reducing the risk posed by forensic patients to the community and to themselves.
The system offers highly specialised rehabilitation services which aim to reduce
the risk to the point where the person can be safely managed in the
community.
In recent years, the system has been going through a period of
momentous positive change both in terms of law reform and improved forensic
mental health services. Today, I want to give you an outline of those changes.
Overall, I consider they have made the forensic regime in NSW more effective,
transparent and accountable. I also hope these changes will, in time, prompt you
as lawyers to rethink any reservations you may have about the forensic mental
health system and the advice you might give to clients who may become forensic
patients or who may enter the corrections system with a mental illness or
intellectual disability.
Overview of the Changes
The Mental
Health Legislation Amendment (Forensic Provisions) Act 2008 (the Amendment
Act) came into effect on 1 March 2009. Gazette No 44 of 27.2.2009, p1. The
Amendment Act retitles the Mental Health (Criminal Procedure) Act 1990 as
the Mental Health (Forensic Provisions) Act 1990 (the Act). The Amendment
Act abolishes the system of determinations previously made by the Minister for
Health and Governor for the treatment, care, detention and release of persons
found not guilty by reason of mental illness or unfit for trial under the
Mental Health (Criminal Procedure) Act. It makes the Mental Health Review
Tribunal, constituted by a special Forensic Panel, the determining authority in
such matters. The Panel must be presided over by a current or former judge when
considering release matters. The Amendment Act also introduces a new category of
patient — correctional patient — which covers persons who develop mental
illness whilst in custody on remand (including persons refused bail) or whilst
serving a sentence. The category 'forensic patients'only includes persons found
not guilty by reason of mental illness and either detained or released subject
to conditions or persons found unfit to stand trial who are detained.
The
Act does not change the legal concepts of unfitness for trial and not guilty due
to mental illness. The NSW Law Reform Commission is currently considering those
concepts and the relevant procedure as part of its reference on sentencing of
persons suffering from mental illness or cognitive deficit.
Role of
the Tribunal
For those of you who don't know, the Tribunal is a
quasi-judicial body constituted under the Mental Health Act 2007. It reviews the
cases of detained patients in both the civil and forensic systems. In the last
financial year it conducted 8,429 civil reviews and 788 forensic reviews. The
Tribunal is required to conduct its hearings with as little formality and
technicality as a proper consideration of the matters before it allow.
Participants at hearings usually include the patient and their lawyer, primary
carers and members of the treating team and or case managers. In forensic review
hearings it is also not uncommon for victims to attend.
In the forensic
area, following the amendments, the Tribunal is required to review the cases of
correctional patients and forensic patients. In relation to forensic patients,
the Tribunal is required to review the cases of persons found unfit to be tried
(as soon as practicable after the finding is made) to determine whether they are
likely to remain unfit for 12 months following the finding of unfitness. Mental
Health (Forensic Provisions) Act 1990, s 16(1). At the same time the Tribunal
may now make a recommendation to the Court about the person's care and treatment
needs.
The Tribunal is also required to review the cases of persons found
not guilty by reason of mental illness as soon as practicable after the finding
is made and must make orders as to the person's care, detention, treatment or
release. Mental Health (Forensic Provisions) Act 1990, s 44. Thereafter the
Tribunal conducts regular six monthly reviews of the cases of every forensic
patient, Mental Health (Forensic Provisions) Act 1990, s 46(1).and in some
circumstances the Tribunal can now extend the review period up to 12 months.
When the Tribunal conducts further reviews of persons found unfit to be tried,
it must consider the fitness issue at each review.
The Tribunal may make
orders to permit leave and release for forensic patients from mental health
facilities, correctional centres or other places and may make orders which would
have the effect of terminating the status of a person as a forensic patient.
Mental Health (Forensic Provisions) Act 1990, ss 51-53. I will say more about
this shortly.
CTOs and reclassifying patients
A real innovation
under the new provisions is that the Act now provides in section 67 for forensic
Community Treatment Orders (CTOs) for compulsory treatment in correctional
centres. These orders can be made by the Tribunal for forensic patients,
correctional patients and inmates. Mental Health (Forensic Provisions) Act 1990,
s 67. The Tribunal is currently working with Justice Health to implement this
aspect of the legislation. Generally speaking the CTO provisions of the Mental
Health Act 2007 apply to forensic CTOs with some variations as specified in the
Regulations. The Act envisages that the forensic CTO may be amended in order to
continue when the person is released thereby providing a vital continuity of
care link between the corrections environment and the community.
The new
provisions continue the power for the Tribunal to reclassify a forensic patient,
on a limiting term, as an involuntary patient when they are in the last six
months of the term Mental Health (Forensic Provisions) Act 1990, s 53. Similarly
the Act in section 65 now extends this power to correctional patients in the
last six months of their sentence. These provisions are commonly used in
conjunction with the community treatment order provisions under the Mental
Health Act 2007 to reclassify the person and then release them immediately to
the community on a CTO.
Specific requirements for orders
The
Act is now far more prescriptive about the matters the Tribunal should consider
when determining what order to make in relation to forensic patients and
correctional patients. The Tribunal is now required to consider the following
matters set out in section 74:
1. whether a person is suffering from a
mental illness or other mental condition,
2. whether there are reasonable
grounds for believing that care treatment or control is necessary for the
person's own protection from serious harm or the protection of others from
serious harm;
3. the continuing condition of the person, including any likely
deterioration and the effects of such deterioration;
4. whether a forensic
patient subject to a limiting term (imposed in consequence of having been found
unfit for trial) has spent sufficient time in custody; and
5. in the case of
proposed release, a report by a forensic psychiatrist or other person of a class
prescribed by the regulation (such as a forensic psychologist) not currently
involved in treating the person, as to the condition of the patient and whether
the safety of that person or any member of the public will be seriously
endangered by that person's release.
The last requirement for an
independent report in release matters reflects section 43 which provides that
where the Tribunal considers ordering the release of a forensic patient, it must
not make the order unless it is satisfied that the safety of the patient or any
member of the public will not be seriously endangered by the patient's release
and that no other care of a less restrictive kind consistent with safe and
effective care is appropriate. Mental Health (Forensic Provisions) Act
1990, s 43.
The other limitation on the release power is that the
Tribunal must not make an order for release if the court has remanded the person
in custody but may make a recommendation to the court as to the person's
release. Mental Health (Forensic Provisions) Act 1990, s 47(2).
The Act
provides that the Tribunal may release a person with or without conditions. If
the Tribunal releases a person conditionally it may impose conditions specified
in s75 including conditions as to medication, living arrangements and use or
non-use of alcohol and other substances. In addition, victims may apply for
further conditions to be imposed under s76 for non contact with the victim or
their family members and prohibitions or restrictions on visiting places. Such
restrictions may also be imposed in relation to any leave granted by the
Tribunal.
When considering leave or release the Tribunal should also have
regard to whether the authorised medical officer has discharged the duties
prescribed by s76 G, namely consultation with the patient, primary carer and,
where appropriate, with dependents and relevant agencies.
Finally and in
addition to these considerations, the 'Principles for care and treatment'set out
in section 68 of the Mental Health Act 2007 apply to forensic patients
and correctional patients Mental Health (Forensic Provisions) Act 1990, s
76B..
Now, none of these requirements are surprising but they do
add a degree of transparency and potential accountability for the Tribunal's
decision making process and they make it clear that forensic patients and
correctional patients are entitled to receive appropriate care and treatment
which is no more restrictive than is necessary for safety
reasons.
Termination of Forensic Status
A person's status as a
forensic patient will be terminated when:
* They are reclassified as an
involuntary patient.
* An order for unconditional release is made
under s 39. Mental Health (Forensic Provisions) Act 1990, s 51(a).
* A person
who is found not fit to be tried is found not guilty at a Special Hearing.
*
A person who is unfit to be tried is found to have committed the offence but is
conditionally released and the conditions expire with the effluxion of time.
Mental Health (Forensic Provisions) Act 1990, s 51(1)(b).
* A person is found
guilty on the limited evidence available but a limiting term is not imposed.
Mental Health (Forensic Provisions) Act 1990, s 52(1)(b).
* Following expiry
of a limiting term.
The fact that a person ceases to be a forensic
patient means that they are not subject to the Act, including supervision by the
Tribunal.
Correctional Patients
As noted at the beginning, the
Amendment Act introduces a new category of patient — correctional patient —
which covers persons who develop mental illness whilst in custody on remand
(including persons refused bail) or whilst serving a sentence.
The
provisions are essentially the same as the old transferee provisions. Under s55,
the Director-General (or delegate) may direct that a person imprisoned in a
correctional centre be transferred to a mental health facility, if it appears
that the person is a mentally ill person (as defined in the Mental Health Act)
on the basis of two certificates about the person's condition issued by two
medical practitioners (one of whom must be a psychiatrist).
In addition,
under s55(4), a transfer order may be made with the person's consent if it
appears to the Director-General, on the basis of the certificates, that the
person is suffering from a mental condition for which treatment is available in
a mental health facility.
When the Director-General (or delegate) makes
an order under s55, the actual transfer does not always take place immediately
because a place may not be immediately available in a mental health facility.
Section 58 makes provision for the Tribunal to conduct limited reviews at least
once each month of such cases until the person is transferred (or until the
order is revoked).
Under s59 the Tribunal must review the case of a
person transferred to a mental health facility as soon as practicable after the
transfer and may order the persons continued detention, care or treatment in a
mental health facility or correctional centre. The Tribunal must continue to
review the case of a correctional patient every six months and may review them
at any time (s61(1)).
The significant point in relation to correctional
patients is that the Tribunal cannot grant them leave or release to but can
under s62(2) recommend leave for correctional patients to the Commissioner of
Corrective Services who can grant the leave. As I mentioned before the Tribunal
can reclassify correctional patients as involuntary patients in the last six
months of their term. Section 64 sets out the circumstances in which a person
ceases to be a correctional patient.
Right of appearance or
submissions
Section 154 of the Mental Health Act 2007 provides that
forensic patients having any matter before the Tribunal must be
represented; unless the forensic patient decides he or she does not want to be
represented. The forensic patient is to be represented by an Australian legal
practitioner or, with the approval of the Tribunal, by another person of the
patient's choice.
The new development however is that although the
Tribunal is now the determining authority for leave and release matters, the Act
now provides in s76A(2) that the Minister for Health and the Attorney General
may appear before the Tribunal, or make submissions to the Tribunal in relation
to the possible release or grant of leave to a forensic patient. Because of this
provision, and the victim's right to seek place restriction and non association
orders on leave and release matters, the Tribunal has introduced a requirement
for treating teams and forensic patients to give notice of any intended
application for leave and release. This allows the Tribunal to give the Minister
for Health, the Attorney General and victims appropriate notice of such
applications.
Appeals from Forensic Division of Tribunal
The
Act now provides in Section 77A for appeals from Tribunal decisions to the
Supreme Court and to the Court of Appeal.
A forensic or correctional
patient who is party to proceedings before the Tribunal under the amended Act
may, with leave, appeal a Tribunal determination to the Supreme Court on
a question of law or on 'any other question': s 77A(1). The appeal to the
Supreme Court can be from any Tribunal determination other than a release
determination.
The Minister for Health may appeal to the Supreme Court
from any determination of the Tribunal in a proceeding before it under the
amended Act, as of right, on a question of law or 'any other question': s
77A(2). The appeal can be from any Tribunal determination other than a release
determination.
A victim of a forensic patient who has applied to the
Tribunal seeking non association or place restriction orders in relation to
leave or release under s76 may, by leave, appeal to the Supreme Court
from any Tribunal determination under that section in those proceedings on a
question of law or 'any other question': s 77A(3).
A forensic patient
(referred to as the person) may, by leave, appeal to the Court of Appeal
from a Tribunal determination concerning their release made under the Act on a
question of law or 'any other question': s 77A(4).
The Minister for
Health may, as of right, appeal to the Court of Appeal from a Tribunal
determination concerning the release of a person made under the Act, on a
question of law or 'any other question': s 77A(5).
The Attorney General
may, as of right, appeal to the Court of Appeal from a Tribunal
determination concerning the release of a person, made under the Act, on a
question of law: s 77A(6).
After deciding an appeal made under s 77A, the
court may (unless it affirms the Tribunal determination):
* make such order
as, in its opinion, should have been made by the Tribunal (s 77A(9)(a), or
*
remit its decision on the question to the Tribunal and order a rehearing of the
proceedings by the Tribunal (s 77A(9)(b)), which on rehearing must not proceed
in a manner or make an order or decision that is inconsistent with the decision
of the court (s 77A(10)).
The Act also provides for the Tribunal or the
court to suspend the Tribunal's order pending the outcome of an appeal: s
77A(11). The suspension can be terminated under s 77A(12).
If a rehearing
is held, fresh evidence — or evidence in addition to or in substitution for
the evidence on which the original determination was made — may be given on
the rehearing: s 77A(13).
Tribunal decisions
The Act
requires Tribunal orders to be in writing and the Tribunal aims to produce
orders and reasons concerning leave or release within four weeks of a review
hearing. The Tribunal will generally indicate at the hearing when the order is
to take effect. In conditional or unconditional release matters the Tribunal
will usually order that the release decision will take effect at the end of the
28 day appeal period after publication of the release order and
reasons.
The same approach will generally apply to leave orders except
where the leave is uncontroversial and no objection has been indicated at the
time of the hearing. In such cases the Tribunal may order that the leave is to
have immediate effect upon the order being issued. An example of relatively
uncontroversial leave may, depending on the patient, be Escorted Leave where the
forensic patient is escorted by staff of the mental health
facility.
Some Court related issues
Court ordered
release
Section 39 of the Act remains unaffected by the reforms and by
that section Courts can make orders for the conditional or unconditional release
of persons found not guilty by reason of mental illness, provided the court is
satisfied on the balance of probabilities that the safety of the person or any
member of the public will not be seriously endangered by the person's
release.
An important consideration for the Court should be the
availability of appropriate care and treatment in the community.
When a
Court is determining what conditions to impose on release it is appropriate for
the Court to seek assistance from counsel and experts in order to tailor the
conditions to suit the circumstances of particular individuals. (The Tribunal
has a set of template of conditions for release which are available on request
to legal representatives.) Usually, it will be appropriate for a community
mental health agency, a case manager and a treating psychiatrist to be appointed
to manage the person's care and treatment in the community if they are mentally
ill. If this is sought as part of the order, it is important to ensure that the
agency and/or individuals have agreed to accept the person and the Court should
be advised that this has happened.
After the Court orders conditional
release the Tribunal must review the forensic patient as soon as practicable and
must make an order for the person's care, detention, treatment or release. To
this extent, all cases of conditional release by the Court will be interim until
the Tribunal can review the forensic patient's case.
Bail and Fitness
matters
Under the Act, where a person is found unfit by the Court they
will now only become forensic patients if they are detained prior to any special
hearing. If they are released on bail they will not be forensic patients and
although the Tribunal will do the initial fitness review, they will not be
subject to the Tribunal's supervision.
Consequently, where a Court is
considering releasing a person on bail following an unfitness finding, the Court
may need to seek advice concerning the person's mental health condition and any
need for treatment in the community. Having considered this advice, a Court may
consider imposing bail conditions requiring treatment or assessment Bail Act
1978 Section 36 2(a) and (b), s 36A and s 37.. Such conditions might be also
crafted having regard to the standard conditions for the conditional release of
forensic patients. It may be that the person is already on a CTO in the
community and the court may have regard to this.
The Act also now
provides that the Tribunal having conducted the fitness review may make a
recommendation to the court as to the person's care and treatment. Mental Health
(Forensic Provisions) Act 1990, s 16(3A). Whilst this allows the Tribunal to
recommend care and treatment this will only happen at the section 16 fitness
review which could be months after the Courts finding of unfitness and person
may already be on bail. So it is essential for you to consider treatment needs
and bail conditions at the first grant of bail following the court's finding to
reduce the possibility of the person becoming unwell and reoffending whilst on
bail.
Overview of the NSW Forensic Mental Health
System
There are approximately 315 people (280 are males and 35 are
females) currently subject to the provisions of the Act, the vast majority of
whom have been found not guilty by reason of mental illness. Of the 315, 229 are
detained and 86 are currently released in the community subject to
conditions.
As I said at the outset, the forensic mental health system is about managing
and reducing the risk forensic patients pose to the community and to themselves.
If a forensic patient's rehabilitation is successful they will be able to
re-enter the community because they no longer present an unacceptable risk,
(that is their safety or the safety of any member of the public will not be
seriously endangered) and they can be safely managed with supervision in the
community.
New forensic patients enter the system from court and will usually land at
Long Bay Prison Hospital or if a bed is not available there, at one of the
assessment units within the prison system. From there they should be assessed
for transfer to one of the specialist forensic rehabilitation units whose
treating teams include forensic psychiatrists, occupational therapists,
psychologists, social workers and mental health nurses.
The following is a brief overview of the key elements and services within the
NSW forensic system involved in managing and reducing risk.
Within the
Correctional System
The Statewide Forensic Mental Health Service provides mental health care to
offenders, young people, and formal forensic patients in the NSW correctional
system. Correctional Centre facilities include:
* Long Bay Prison Hospital - Mental Health Unit - 40 beds
* The Mental
Health Screening Units at the MRRC (40 beds) and Silverwater Women's (10
beds)
* Ambulatory Services at 20 Correctional Centres
* DCS has
accommodation for a small number of the more vulnerable offenders with
intellectual and other cognitive disabilities within separate units at Long Bay
(22 places covering all classifications) and Goulburn Correctional Centres (15
places for sentenced minimum security).
The Long Bay facility is the Additional Support Units. It is intended to
address the assessment, general management, program and pre-release planning
needs of offenders with disabilities.
The majority of the offenders housed here have intellectual and other
cognitive disabilities. As well the target group may also experience comorbid
issues such as acquired brain injury, psychiatric illness, visual, auditory or
physical impairments which combined have resulted in reduced capacity in one or
more major life activities such as communication, learning, mobility, decision
making or self care.
Only one of the intended 3 units is operational. It is 5 Wing and it allows
assessments and general programs. When all 3 additional support units are fully
operational they will allow the Department to conduct assessments, therapeutic
programs (including programs for sex offenders), vocational training, work
options and more intensive pre-release planning.
Programs conducted up until now in the specialised unit include:
* life
skills (including food skills),
* literacy/numeracy,
* horticulture,
*
health in prisons (harm minimisation),
* vocational training/assembly and
packaging in CSI,
* asset maintenance,
* problem solving,
*
communication,
* relationships,
* sexuality and consent,
*
recreation,
* fitness, and
* sport and leisure.
Outside the
Correctional System
Forensic patients can be transferred to the following
specialist forensic mental health facilities:
* The new Forensic Hospital at
Long Bay (135 beds when fully operational)
* The Bunya Unit at Cumberland
Hospital (24 beds)
* The Kestrel Unit at Morisset Hospital (30 male only
beds)
* Cottage programs at Cumberland and Morisset (a further 16 beds)
*
A new 30 bed forensic facility at Bloomfield in Orange is due to open in 2011.
In addition forensic patients will sometimes be transferred to:
* Macquarie Hospital, Concord Hospital and Kenmore (10 to 15 beds)
The
new Forensic Hospital is a high security facility which will offer a wide range
of rehabilitation opportunities. However it will not offer external leave
options, nor will it have any step down options, such as are available at Bunya
and Kestrel. By that I mean that both these units have leave programs and
cottage programs on the grounds of the hospital which offer a higher degree of
independence for forensic patients, including doing their own grocery shopping
and cooking.
In the Community
When forensic patients are
conditionally released they may be supervised in the community by:
* Case
Managers within one of the 8 Area Health Services
* DCS works with the
Department of Ageing, Disability and Home Care (DADHC) in respect of offenders
who are eligible for the Criminal Justice Program and on services for offenders
with an intellectual disability when they are released from custody.
* The
Criminal Justice Program aims to minimise re-offending in people with an
intellectual disability who have exited a correctional facility and facilitate
appropriate community integration through the provision of specialised
accommodation and support along with pre-and post release clinical and case
management services.
* The CJP currently provides services to 105 individuals
across NSW with approximately 40 new places per year in 2009/10 and
2010/11.
Other Key participants include:
* The Community
Forensic Mental Health Service (CFMHS)
* The Mental Health Advocacy
Service
* Victims' groups
* Other agencies such as Housing
For the
forensic system to work fairly and effectively, those who achieve successful
rehabilitation should be conditionally released and thereby make way for other
forensic patients who require the specialist services. This was one of the
problems with the previous system. Some of the best forensic mental health
treatment placements were taken up by forensic patients who arguably no longer
required that level of care and security. However before forensic patients can
be conditionally released we need community agencies prepared to accept them and
we have to have confidence in the competence of community agencies to safely
manage forensic patients.
Until recently community agency clinicians had limited training and
experience in the management of forensic patients. In particular they need to
understand the responsibilities they have in managing these patients and must
appreciate the community's interest and high expectations about how forensic
patients should be managed. This is where the NSW Community Forensic Mental
Health Service is playing a significant role.
The NSW Community Forensic Mental Health Service
The CFMHS provides specialist forensic assessments and advice about
individuals with serious mental illness presenting to the criminal justice
system. The service is also the major source of independent risk assessment
reports for people being considered for conditional release by the Tribunal. The
Service also has an ongoing role in monitoring and reviewing conditionally
released patients in the community.
Whilst the CFMHS cannot provide direct care it does provide specialist
forensic advice and assessment to community agencies. In addition the CFMHS is
providing state wide training in risk assessment and management for general
mental health clinicians to build competency in risk management of high risk
patients. This is an extremely important initiative because we know that in the
past an unacceptably high proportion of forensic patients were not diagnosed and
treated in relation to a serious mental illness until after the act which made
them forensic patients.
The CFMHS is also now providing a limited service
to Northern Sydney Central Coast Area Health Service in which forensic
clinicians are allocated into the Area Health Service to work along side
existing clinical teams to assist and manage mentally ill individuals at high
risk of re-offending but who are managed in non-forensic environments. This will
hopefully become the model for a statewide service in the
future.
Summary of Progression
1. Detention in High
Secure Facility
2. Transfer to Medium Security facility
3. Stepwise
progression of leave
· Escorted day leave
· Supervised day
leave
· Unsupervised day leave
· Supervised overnight
leave
· Unsupervised overnight leave
· Movement to cottages
program
4. Conditional Release
5. Unconditional Release
Conclusion
The developments I have outlined in the NSW forensic mental
health system are very positive. There is now a level of transparency and
accountability in relation to the decisions concerning forensic patients which
should, in time, build confidence in the system.
If one of your clients becomes a forensic patient today it is much more
likely than ever before that they will receive appropriate care, treatment and
rehabilitation in an environment which is no more restrictive than is necessary
to manage the risk they pose to themselves and to the community. Subject only to
their mental health and their related risk factors they should move through the
system. If and when they are conditionally released they will continue to be
reviewed by the Tribunal and will receive care, treatment and support in the
community to ensure that they remain safe and well.
Importantly, the new provision for forensic CTOs will improve the capacity of
the system to ensure continuity of care for people coming into the corrections
system and going back out into the community.
Finally, the NSW mental health system is developing a better capacity to
intervene early to ensure that the relatively small number of mentally ill
people who constitute a significant risk of harm to the community receive
effective and comprehensive treatment and support. Overtime this will reduce the
number of people who become forensic patients.