Preface
0.1 Issues regarding mental illness and intellectual and other cognitive disabilities are among the most difficult concerns for law and policy makers to address. As a progressive, civilised society, we seek to provide adequate care and support services for those who are most vulnerable. People with mental illness and cognitive impairments unquestionably fall into this category.
0.2 The purpose of this review is to examine the law and practice regulating what happens to people with a mental illness or a cognitive impairment, or both, who commit crimes. The law recognises that a defendant’s mental state may affect the nature of the criminal justice response that would ordinarily attach to his or her actions. For example, a Local Court magistrate may, in certain circumstances, consider it more appropriate that a defendant be treated in a mental health facility rather than receive a criminal sanction, and order that the defendant be diverted away from the criminal justice system. Offenders appearing before the District or Supreme Courts may be deemed to be unfit to stand trial, or may be tried before a court or a special hearing and receive a qualified acquittal on the ground of mental illness. Alternatively, an offender may be found guilty following an ordinary trial, but have a mental impairment that may lessen the degree of criminal liability, or be relevant to the sentencing process.
0.3 In this review, we assess the effectiveness of the current operation of the criminal justice system in its dealings with offenders who have cognitive or mental health impairments. We do so against the background of the current legislative and administrative regime and a comparison with other jurisdictions, together with Australia’s obligations under relevant human rights instruments.
THE COMMISSION’S APPROACH
0.4 The Commission’s approach throughout this review is to identify the key concepts concerning people with cognitive and mental health impairments who come into contact with the criminal justice system. Perhaps the most fundamental question is what should happen to people with cognitive and mental health impairments who commit crimes?
0.5 In determining the answer to this question, we need to ensure the integrity of the criminal justice system by balancing a just outcome for society generally, and for victims of crime, with a fair outcome for the perpetrators. In situations where the perpetrator has a mental illness or cognitive impairment, what best meets the interests of justice may differ from the outcome that would be appropriate in ordinary circumstances. This is particularly the case where an offender’s criminal actions can be attributed wholly or partially to his or her impairment.
0.6 In undertaking this task, we are cognisant of the significant number of reviews relating to this, and similar, subject matter that have preceded us.1 Constant themes have emerged pointing to a lack of appropriate services and treatment options for people with cognitive and mental health impairments, both in and out of prison, coupled with the need for greater legislative consistency and coordination between agencies responsible for mental health service provision.
0.7 While it is not within the scope of this inquiry to make recommendations concerning the availability of services and resources, we acknowledge the impact that this may have on the likelihood of people with cognitive and mental health impairments coming into contact with the criminal justice system, and the consequences that may follow.
0.8 From our initial research, we see the issues of consistency and coordination as being particularly significant in the following respects:
- the lack of consistency in terminology used in the relevant legislation to describe the concepts of mental illness, other mental conditions, and intellectual or cognitive impairments;
- the difference in the powers that may be exercised by the Local Court, as distinct from the District and Supreme Courts, when dealing with offenders with cognitive and mental impairments;
- the different legislative recognition of mental illness and cognitive impairment; and
- the coordination between the courts and agencies responsible for the implementation of court orders with regard to offenders with cognitive and mental health impairments.
We ask questions throughout this review on these and other matters.
A series of consultation papers
0.9 The task before us is daunting and multi-faceted. Our terms of reference require us to investigate issues relating to people with cognitive and mental health impairments across the spectrum of the criminal justice system. The Commission recognises that while these issues are interrelated to an extent, they also raise separate and discrete questions. With this in mind, rather than publishing a single, longer consultation paper, we have chosen to publish separate papers on the various subject areas coming within the terms of this reference in order to present the issues more clearly for the purpose of consultation. People with an interest and expertise in a specific area can then focus their attention on the paper dealing with that topic.
0.10 This Paper is the first in a series of five consultation papers on this reference, dealing with the following subjects:
1. Consultation Paper 5 – presents a background and overview of the laws affecting people with a mental illness or a cognitive impairment when they become involved as defendants in the criminal justice system.
2. Consultation Paper 6 – considers the laws determining the nature and extent of criminal responsibility in relation to offenders with cognitive or mental health impairments, primarily in relation to Supreme and District Court proceedings, and the consequences that may follow. In particular, Consultation Paper 6 deals with:
- fitness for trial and the options for dealing with offenders found unfit but not acquitted;
- the elements of the defence of mental illness and how the criminal justice system should respond to offenders found not guilty on the ground of mental illness;
- the partial defence of substantial impairment;
- infanticide; and
- sentencing principles and options.
3. Consultation Paper 7 – examines the laws relating to the diversion of offenders with a mental illness or cognitive impairment away from the criminal justice system, focusing on the diversionary mechanisms available to the Local Court.
4. Consultation Paper 8 – looks at the use of forensic samples taken from a defendant who has been diverted from the criminal justice system, or found unfit to be tried or not guilty by reason of mental illness;
5. Consultation Paper 9 – considers issues specific to young offenders with a mental illness or cognitive impairment.
The first four papers (Consultation Papers 5-8) have been released concurrently. Consultation Paper 9 will be released early 2010.
Structure of this Paper
0.11 This Paper provides the background for the current review, offering an historical perspective, and outlining the genesis of our Terms of Reference and the relationship of this review to previous inquiries. It contextualises our task by explaining the concepts of cognitive and mental health impairments and the incidence of those impairments in the community generally, and within the criminal justice system. Chapter 2 presents an overview of the relevant legislation, while the way in which the current system works in practice is set out in Chapter 3.
0.12 Chapter 4 notes the inconsistent legislative approach to defining mental illness, cognitive impairment and other mental conditions and seeks views on how to overcome the difficulties caused as a result. For the criminal justice system to respond effectively to offenders with cognitive or mental health impairments, the offender needs to be identified as having such an impairment. In Chapter 5, the Commission discusses the mechanisms currently available to a court to determine whether an offender has a cognitive or mental health impairment, and asks whether there should be a general power to order a medical and/or psychiatric assessment at any stage during proceedings relating to the prosecution of a criminal offence.
Preliminary consultations
0.13 To assist in isolating relevant issues and concerns, the Commission invited preliminary submissions from medical practitioners, judges and magistrates, and agencies such as the Office of the Director of Public Prosecutions, the Legal Aid Commission, the Law Society of NSW, the Public Defenders Office, the Intellectual Disability Rights Service, the NSW Council for Intellectual Disability, and community legal centres. Meetings were also held with the Mental Health Review Tribunal, NSW Police, the Intellectual Disability Rights Service, the Public Interest Advocacy Centre, and Professor Susan Hayes. The Commission is very grateful for this input.
Submissions and further consultation
0.14 A number of issues are raised in this series of consultation papers, designed to stimulate consultation on a much broader level. Submissions in oral, written or electronic form are invited from any interested person or agency, and will assist the Commission in developing its final recommendations.
FOOTNOTES
1. See the overview of past inquiries at [1.57]-[1.66].
