Australian Community Services Organisations (ACSO) Disability and Justice conference
Melbourne, 15-17 July 2009
Alison Merridew
Graduate Clerk, NSW Law Reform Commission
Let’s consider for a moment the people in this room. There are about 100 of us. In the general population, these 1-3 people have an intellectual disability. Maybe 1 person has a psychotic illness.
If we were in a prison in NSW, roughly these 2 rows would have an intellectual disability. Another row would have a psychotic illness. About half the men, and most of the women, would have a substance abuse disorder.
Correctional populations have significantly higher rates of cognitive and mental health impairments than the general community. Not only do we all know this, but we also know that this has been the case for a long time.
The Commission has been asked to undertake a general review of the criminal law and procedures applying to people with cognitive and mental health impairments. I would like to acknowledge the other members of the team, legal officers Donna Hayward and Rebecca Kang, and Commissioners the Honourable James Wood AO QC, the Hon Greg James QC, the Hon Hal Sperling QC and Professor Michael Tilbury.
The phrase “cognitive and mental health impairments” is intended as a “catch-all” expression which includes pretty much everything except for substance use disorders. Today I’ll try to emphasise the aspects relevant to persons with cognitive impairments, which includes intellectual disability, autistic spectrum disorders, acquired brain injury, and neurodegenerative diseases such as Alzheimer’s condition.
We have been asked to have particular regard to sentencing, fitness to be tried, the defence of mental illness, and diversion.
An important starting point for reviewing the law is to understand its purpose and rationale.
The existing framework reflects these underlying considerations.
Community protection has always been a feature of the criminal justice response to people with cognitive and mental health impairments. This reflects both real risks, and community fear and misunderstanding. Historically, it meant indefinite detention of people who were unfit or not guilty by reason of mental illness. We are starting to see a gradual shift towards treating and managing people in the community.
Fairness to the defendant underpins fitness for trial, because if a person is not in a condition to defend him- or herself, then there cannot be a fair trial.
Fairness also requires that punishment should be proportionate to the degree of criminal responsibility, both in sentencing, and also in cases where there is no punishment at all because the person is not responsible – that is the defence of mental illness.
Punishment is meant for retribution and to deter the offender and others from doing the same thing. This doesn’t work if the person’s conduct was not really a “choice” but arose from an impairment. A person can’t be deterred from behaviour they didn’t really “choose” in the first place, and it wouldn’t be fair to punish them to set an example to others.
Treatment and support have found their way into the criminal justice response more recently, partly because of advances in our understanding of cognitive and mental health impairments, and the availability of medication and therapeutic techniques such as cognitive behavioural therapy.
A number of human rights instruments recognise the rights of people with cognitive and mental health impairments to appropriate treatment and support, both in the general community and in prisons. In practice, however, there remain significant gaps in service delivery, especially for people with cognitive impairments, in correctional and forensic contexts.
The historical origins of the framework are also relevant. If we understand why particular mechanisms were introduced, we can determine if they are achieving their intended purpose. Sometimes, the original reasons no longer apply.
We can also identify additional principles that should infuse the framework – such as modern human rights norms – and find ways to balance the relevant considerations.
I’m going to start by talking about sentencing because this represents an outcome of the “ordinary” criminal trial process, as opposed to special measures for people with CMHI.
Sentencing raises two main questions – what are the principles that apply when a court is sentencing a person with a cognitive or mental health impairment? And, having applied those principles, are the sentencing options that are available to the court adequate in terms of providing for treatment or other support services where necessary while also meeting the needs of the community in terms of punishment and safety?
There are 7 special principles in the Australian caselaw but the NSW courts usually only refer to four of them. “Dangerousness” receives particular emphasis in NSW.
Ordinary sentencing principles also apply. It’s important to note – and for lawyers to draw attention to – the inherent assumptions in some of these principles. For example, assessing the “objective seriousness” requires comparison of the defendant’s conduct with the hypothetical “ordinary person” – who doesn’t have a CMHI. This is likely to disadvantage offenders with impairments.
I’m going to read an extract now from the judgment in a sentencing appeal case.
“Sam” received prison sentences for five separate offences. “Sam” has a significant intellectual disability.
“Sam” has been assessed as not being suitable for community service work. This is simply because the Department [of Corrective Services] does not have the resources to supervise him with his intellectual disability. He is also unsuitable for periodic detention for the “Sam”e reason. It is not his fault that he is intellectually disabled, and yet the consequences for him could be quite significant.
No alternatives to full-time custody seem available. The law is not that I must therefore go down the rungs until I find a sentence which “Sam” can serve. I must choose from those which are available, that is the most appropriate sentence. In this case I am probably choosing the least inappropriate sentence.
“Sam” committed a number of offences relating to graffiti. [These offences] involved the appellant in graffiti-ing property with his own tag. Police soon learned what the appellant’s tag was, so whenever they saw it they knew that the appellant was responsible.
The appellant was also convicted of assault occasioning actual bodily harm in circumstances which came about because of another act of [graffiti] by him. The secretary/manager of the golf club which had been graffiti-ed went back to the golf club in order to take photographs of the damage. Whilst there he recognised the appellant as having been a person whom he had seen on security video graffiti-ing his establishment. He observed him at the “Sam”e time stealing money from a wishing well. When he attempted to detain “Sam”, “Sam” fought back, causing the victim to have significant injuries, including fractures to his hand.
The fourth offence for which the appellant is to be sentenced involves the assault of an officer in the execution of her duty…
Finally there is an offence of committing an act of indecency. For reasons which are difficult to understand the appellant took it upon himself to expose himself to a woman working alone in a travel agency. He began to masturbate. The appellant was interviewed by police who indicated that he would have expected that his actions would have frightened the victim.
For all of those offences the appellant received imprisonment, concurrent terms, the longest of which was eight months with a non-parole period of five months for the act of indecency matter
… spending one month in custody appears to have been a salutary lesson for him.
He presented to Justice Health as teary and distressed and extremely fearful for his safety.
Community service would have been an ideal punishment for “Sam”. It would have been a case of the punishment fitting the crime in that it would have allowed him to give back to the community something he has taken away from it by his graffiti-ing activities. However, as I have noted at the beginning of these remarks on sentence, it is simply not suitable because of his intellectual disability.
I consider that in those circumstances it is appropriate for me to note that the appellant has served one month in custody, and taking that matter into account, to release “Sam” on a good behaviour bond … for a period of two years from today.1
This case illustrates several points.
In NSW, there are no sentencing options specifically for people with CMHI – such as residential treatment orders, justice plans or hospital orders which exist in Victoria – so the mainstream sentencing options are the only orders available to the court.
The legislation that sets up the existing community-based sentencing options – weekend detention, home detention, community service and good behaviour bonds – does not include many provisions to adapt these sentencing options to the needs of people with cognitive and mental health impairments. There are few formal mechanisms to link the court and the probation and parole service with other service providers.
In practice, this contributes to two problems. If – as in Sam’s case – the court or the PPS cannot arrange the necessary services, then the offender might be ineligible for sentences such as community service or weekend detention, and end up going to gaol instead.
In other cases, the court really doesn’t want to send the person to gaol, so it might impose a sentence such as a good behaviour bond. Again, this is what happened in Sam’s case on appeal.
But without adequate support to understand and comply with conditions, there is a good chance a person such as Sam will breach the conditions of the order and/or commit further offences. Then they are punished for failing to comply with the order and so the punishment escalates.
We’re looking at ways to improve linkages between the court and the relevant services. Also, whether we need additional treatment-focussed options and, if so, what options?
Moving on now to fitness to be tried. When lawyers talk about fitness – or unfitness – for trial, we are referring to the person lacking the capacity to understand the trial process, to the extent that the trial would not be fair.
So, when is a person unfit to be tried? The Presser criteria about understanding what is going on, being able to communicate with counsel etc are well accepted in Australia.2
However, broader standards apply in some jurisdictions, including whether a person is able to make rational decisions, or whether the person is able to “participate effectively” in the trial. We are also looking at the concept of “capacity” as it exists in the civil context to see whether that might add to the current formulation.
So what if a person is unfit to be tried? The process is quite similar to the ordinary trial process – we’ll see why in a minute.
There is a “special hearing”, which runs like a normal trial, to give the person a chance of being acquitted. If they’re not acquitted, the court makes an order which is basically the sentence that would have been imposed at a normal trial.
If the sentence would have been prison, the court sets a limiting term which is the hypothetical total sentence that would have been imposed. The person is a forensic patient and subject to the Mental Health Review Tribunal until released or the limiting term expires. The Tribunal can transfer the person out of prison into treatment facilities but these are very limited so in practice many unfit defendants stay in prison.
If it’s a community-based “sentence”, they don’t become a forensic patient and there is no tribunal oversight unless the person happens to be in the civil mental system.
The original idea behind this system was to protect the rights of the unfit accused, so that they weren’t detained if they hadn’t actually committed an offence, and to ensure that the outcome was no worse than if he or she had been convicted of the offence.
So what we’re looking at are: When is a person unfit to be tried?
“Should we test the prosecution case, in order to give the person a chance of acquittal? If so, how can we do this?”
Do we need a special hearing? Should it operate differently, for example, through a less formal procedure such as a conference which might enable the defendant to participate? Or, do we want to reduce the stress on defendants by streamlining the process and allowing the defendant to be excused from attending?
If the person is not acquitted, what should we do with them?
In regard to people who are unfit and subject to a limiting term, I’ll speak more about the forensic mental health system in a moment.
There is also no system for treatment and Tribunal review of unfit persons who are given a community-based “sentence”.
The other big question for people who are unfit to be tried is whether or not there should be a time limit. Again, I’ll address that issue in a moment.
The third area that the Commission has been asked to review is the defence of mental illness.
A person can be found not guilty by reason of mental illness at either an ordinary trial, or at a special hearing if the person is also unfit to be tried.
The current defence is based on the 1843 case of Daniel M’Naghten and reflects quite ancient notions of what “insanity” involved.
The defence is available if a person, because of a “disease of the mind”, did not know the nature and quality of the act, or did not know that the act was wrong.
Several Australian jurisdictions, including Victoria, have reformed the defence in the past 15 years and renamed it “mental impairment”. There have been cases where people with cognitive impairments have successfully relied on the expanded defence.
An interesting feature of the defence of mental illness is that it isn’t really about mental illness at all. The big question here is, “When is a person not criminally responsible for his or her actions?”
The M’Naghten rules do not provide a good way of answering that question. Even Daniel M’Naghten – who tried to kill the Prime Minister, who he delusionally believed was at the centre of a plot to persecute him – should not have been acquitted according to those rules.
We’re considering some alternative formulations for assessing when a person is, or is not, criminally responsible for offending conduct.
If a person is found NGMI, the court must order detention unless satisfied that it is safe to release the person (with or without conditions). The person becomes a forensic patient, subject to the MHRT, unless and until he or she is unconditionally released.
Unlike the unfit forensic patients, the ones who have been found NGMI do not get a “limiting term” or other time limit. They can be detained indefinitely. The indefinite outcome for NGMI currently acts as a big disincentive to raising the defence at all.
The question of whether or not to have a time limit is a really vexed one.
The sentencing-based limiting term for the unfit means the court has to focus on the past conduct and can only consider future risk to a limited extent. It is also quite an artificial exercise in many cases. If a person is likely to pose a risk – and require support – for an extended period of time, an indefinite order may be more appropriate.
However, as we see in the NGMI cases, indefinite detention might mean the whole of the person’s life. Given the lack of appropriate facilities in NSW, and the limited access to therapy in prisons, that would be tantamount in some cases to locking the person up and throwing away the key.
But then, if there is to be a time limit, how should it be calculated? What happens if the person is still dangerous at the end of it?
I’d like to briefly make three points about the forensic mental health system from the point of view of people with cognitive impairments, as opposed to mental health disorders.
The legislation establishes a forensic mental health system.3 The agencies with designated roles under the Act are Justice Health, Corrective Services and Juvenile Justice. The legislation authorises certain compulsory medical treatments for forensic patients. The Act partly reflects the principle of “least restriction” but only to a limited extent.
The legislation does not really address the needs of forensic patients with cognitive impairments.
First, there is no legislative role for disability services. An important consequence of this is the absence of any declared forensic disability facilities where these forensic patients can be detained, leaving prison as the default option.
Forensic patients with mental illness are also sometimes detained in prison, but there is a legislative framework within the prison system, for providing mental health care, including transfer out of prison into a forensic or community mental health facility. There’s an agency called Justice Health which has specific statutory functions for the correctional mental health population.4
There is no equivalent legislated service provision framework for prisoners with cognitive impairments.
Secondly, the legislative focus is on mental health treatment in a medical framework. We’ve heard this week about the high incidence of dual diagnosis, so we’d certainly want to retain the possibility of mental health care for forensic patients with cognitive impairments. However, there is no provision for other interventions that are specific to the cognitive impairment cohort. “Restrictive practices” and other behaviour management approaches are sometimes authorised using concurrent guardianship orders. But people with CI make up a significant proportion of the forensic patient population – the legislation arguably needs to expressly cater for their needs.
The third question that then arises is, what principles should the legislation reflect from a disability, as opposed to mental health perspective? The principle of “least restriction” is well accepted in both fields, although reflected to a limited extent in the NSW forensic mental health legislation. Should there also be a requirement to consider the best interests of the person? In what circumstances should the Act recognise the right of persons with capacity to consent to, or to refuse treatment?
Moving on now to the Local Court and the diversion mechanisms that operate there.
We’ve heard about the sentencing, fitness and defence of mental illness frameworks that exist in NSW. However, fitness and the defence of mental illness only operate in the District and Supreme Courts. They don’t apply in the Local Court. The trade-off is that the Local Court has the power to “divert” offenders out of the criminal justice system.
There are two specific diversion provisions for people with CMHI in the Local Court.5 Section 33 links into the civil mental health system, and the person has to meet the civil criteria for involuntary mental health treatment. Section 32 has more relevance for the cohort with cognitive impairments. It applies if the person has a developmental disability, mental condition or mental illness and diversion is “more appropriate” than proceeding in the ordinary way.
Both sections allow the court to make orders which can be enforced, in the sense of bringing the person back to court, for up to 6 months. The court can dismiss the charges and divert the person into a treatment plan, into the care of a responsible person, or release the person unconditionally. Under s 33, the treatment may be compulsory treatment under the Mental Health Act. There is no equivalent civil compulsory care legislation in NSW – unlike Victoria and Qld – for people with cognitive impairments. So for s 32 cases, it’s a matter of making arrangements for voluntary treatment on a case-by-case basis.
What if the person is unfit, or was “not guilty by reason of mental illness” at the time of the offence? These two sections can be used in some of those cases. However, the short supervision period – only 6 months – means that Local Court magistrates are often reluctant to divert people if the offending is serious, and/or if they have a high level of need for long-term support and supervision.
This is a problem because in those cases, the court is faced with a difficult choice. Technically, if the Local Court decides not to divert a person who is unfit or NGMI, it has no jurisdiction and must discharge the person.6
However, in practice, it is not uncommon for the person to be convicted and sentenced instead, because that provides some measure of community protection (especially if the person goes to prison).7
So the powers of the Local Court are actually quite limited: divert, or sentence – even in some cases where the person is not legally responsible. The court is not equipped to deal with the more serious cases that are now within its jurisdiction.
The Local Court deals with the vast majority of criminal matters in NSW. It arguably needs powers to deal with fitness and NGMI cases. We’re also considering whether the diversion powers should be extended to the District and/or Supreme Courts.
So one of the broad issues we’re considering, when looking at the reference as a whole, is consistency between the different streams, in terms of the underlying principles and making sure that similar cases get similar outcomes.
Another issue, in terms of the legislative framework, is the different needs of the cognitive impairment cohort – which is currently largely overlooked by the Act – compared to the mental health cohort.
Finally, a really big question is how we should respond to young people with CMHI in the criminal justice system?
This is a really difficult, but really exciting area, because no other jurisdiction that I’m aware of has really separately addressed the needs of this group. So we’ve got a sort of “blank slate” to work with.
Basically, at the moment, the adult mechanisms – sentencing, fitness, the defence of mental illness, and the diversion mechanisms – apply to young offenders in the same way as they apply to adults.
There are other groups in the criminal justice system who are often overlooked – eg women. However a key difference for young people is that they are recognised as having a special status in Australian law. In the criminal justice system, there is a longstanding emphasis on rehabilitation rather than punishment for young offenders. More significant, however, is the widely accepted principle that the best interests of the young person must be paramount in all decisions – including by courts.
Young people are currently “invisible” in these frameworks and in the forensic mental health legislation. There are no special provisions about them. Young people who are forensic patients can – like adults – be subjected to compulsory treatment within a legislative framework which focuses not on the best interests of the young person, but on the protection of the community. There is no provision to accommodate their continuing education, contact with family or other age-related needs.
FOOTNOTES
1. Evans [2006] NSWDC 89.
2. R v Presser [1958] VR 45.
3. See Mental Health (Forensic Provisions) Act 1990 (NSW) and Mental Health Act 2007 (NSW).
4. See Crimes (Administration of Sentences) Act 1999 (NSW).
5. Mental Health (Forensic Provisions) Act 1990 (NSW) s 32, 33.
6. Mantell v Molyneux (2006) 165 A Crim R 83; Pioch v Lauder (1976) 13 ALR 266; R v Horseferry Rd Magistrates Court [1996] 3 All ER 719; R v McMahon (2006) 3 DCLR(NSW) 398.
7. See for example Mantell v Molyneux (2006) 165 A Crim R 83; Police v Goodworth [2007] NSWLC 2.
