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CRIMINAL COURTS AND MENTAL ILLNESS The Emergence of Specialist Problem-solving Courts in Australia

Thomson Reuters (Professional) Australia Limited 19 Harris Street Pyrmont NSW 2009 Tel: (02) 8587 7000 Fax: (02) 8587 7100 [email protected] http://legal.thomsonreuters.com.au For all customer inquiries please ring 1300 304 195 (for calls within Australia only) INTERNATIONAL AGENTS & DISTRIBUTORS NORTH AMERICA Thomson Reuters Eagan United States of America

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CRIMINAL COURTS AND MENTAL ILLNESS The Emergence of Specialist Problem-solving Courts in Australia

BRIANNA JADE CHESSER PhD (Law), LLM (LP), LLB, GDLP, BPsc, PGDPsy, GDPPsy, BA, BMus (Hons), AMusA, Grad Cert Higher Ed. MAPS, CPsychol.

LAWBOOK CO. 2016

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW National Library of Australia Cataloguing-in-Publication entry Creator: Chesser, Brianna Jade, author. Criminal courts and mental illness : the emergence of specialist problem-solving courts in Australia / Brianna Jade Chesser. Includes bibliographical references and index. ISBN: 9780455238890 (paperback) Criminal justice, Administration of--Australia. Mental health courts--Australia. Mental health laws--Australia. 345.9405 © 2016 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers.

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FOREWORD The Honourable Paul Coghlan JA In Victoria the law relating to the effect of mental impairment on criminal liability is not much different from that laid down by the House of Lords in M’Naughten’s case in 1843. Although the Crimes (Mental Impairment and Unfitness to be Tried) Act establishes a more humane and organised regime for dealing with those who are acquitted of crimes on the ground of mental impairment, it does not really alter the basis on which the defence of mental impairment may be invoked. The interaction between the law and mental illness is a troubled one. The law (lawyers) and medicine (doctors and psychologists) do not attach identical meanings to expressions used about state of mind. In medicine, diagnosis and the possibility of treatment are paramount. In law, criminal responsibility is the urgent question. Specialist forensic psychiatrists and psychologists do their best to bring the disciplines together. It is not an easy task. Practitioners are often faced with the agonising decision of advising the client whether or not to argue the defence of mental impairment. A short prison sentence might be better than a long supervision order (even non-custodial) which the client cannot keep. Possible alternatives are very important. In this work Dr Brianna Chesser brings her joint disciplinary background, in both law and psychology, to the evaluation of one recent alternative to the question of how we deal with the mentally ill in the criminal justice system. The work also contains a very useful compilation of the law throughout Australia relating to mental illness which is long overdue and which will be helpful to practitioners. It is assessments such as this which will lead us to understand what alternatives exist to deal with the mentally ill offender. 06 June 2016

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FOREWORD Graham Thomas QC The best lawyers have fashioned the common law in relation to criminality and mental illness. M’Naughten, insane at the time, shot and killed Drummond, secretary to the Prime Minister Sir Robert Peel. Consequently, it was the House of Lords which gave us the M’Naughten Rules. Sir Owen Dixon in his charge to the jury in Porter gave us the test to apply in Australia. And yet … Expert witnesses on mental illness are frequently consulted, and called in trials. Forensic Psychiatrists often make difficult adaptations to his/her learning to give evidence of insanity or mental impairment to accommodate the legal tests. It may be that the legal and mental health professionals do not truly talk to each other. Perhaps this is due in part to their different starting points, and different learning when considering criminal behaviour. The author of this book, Dr Brianna Chesser, is qualified as a psychologist and a lawyer, and she is the coordinator of the criminal law, evidence and legal psychology program at Australian Catholic University. Dr Chesser is well qualified to consider crime from the perspective of both a psychologist and a lawyer. Dr Chesser’s book is a thoughtful and useful work which enhances the learning for all of us in the criminal justice system. 6 June 2016

vii

PREFACE THE SCOPE OF THE BOOK This book analyses the nexus between the mental health system and the criminal justice system. This link is evidenced by a high correlation between mental illness and criminal conduct. Criminal courts have recognised the criminogenic role of mental illness in the contexts of guilt, fairness of trials and sentencing, but their response has been to make allowance for mental illness rather than to attempt to assist in treatment. This means that the danger of recidivism is high, possibly unnecessarily high. The therapeutic jurisprudence movement has argued that the traditional model means that courts should play a far more active problem-solving role. In the context of mentally ill defendants, this means that courts should work with mental health professionals and mentally ill defendants to find ways of treating the illness. This will not solely assist defendants; insofar as such programs provide effective treatment, they will also benefit the broader society by reducing recidivism. Courts and governments have found this logic persuasive. One response of courts internationally has been to create a mental health court or diversionary list within existing courts, in an attempt to address deficits in treatment support and to curb the repeated interactions between the offender and the criminal justice system by addressing the apparent cause of the offending behaviour. Such courts have been established for a variety of groups other than the mentally ill, drug courts being one example. But given that mental illness may be susceptible to treatment, and given its criminogenic potential, numerous jurisdictions both overseas and in Australia have established problem solving courts 1 charged with addressing the needs of mentally ill defendants. This book seeks to place the development of the mental health court into an overall context within society and frames it as a part of continuing historical change in societal attitudes towards mental illness. This book examines the operation of one such mental health list, the Assessment and Referral Court (ARC) List that operates out of the Magistrates’ Court of Victoria. This Court List is the first of its kind in Victoria and was created after national and international models were found to be successful. Referencing style This book is a cross-disciplinary analysis of issues relating to psychology and the law. Psychology as a discipline traditionally uses the APA 6 th referencing style and this is the style that will primarily be used in this book. 2 However, where legal references, including cases and legislation, are cited the third edition 1

2

However, the title of “problem-solving” court is becoming less favoured in some sources due to its prejudicial suggestion that constructs those with a mental illness as “problems” that need to be “solved” by the courts. Instead, some researchers have posited a new title for these sorts of courts, the “solution focused” court which highlights the court’s ability to focus on the solution rather than on a “problem”. For an in-depth discussion of this, see King (2011). American Psychological Association, Publication Manual of the American Psychological Association (6th ed). Washington DC: American Psychological Association. ix

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of the Australian Guide to Legal Citation (2009) 3 will be used. The convention of footnoting has been adopted from this style.

WHY DOES THIS NEED TO BE STUDIED? Law and psychology have traditionally been diametrically opposed professions that have often held distrust and contempt for each other. 4 While both law and psychology deal almost exclusively with human behaviour, professional differences have meant, and still tend to mean, that each is wary of the other’s assumptions. 5 The law is based on numerous assumptions about behaviour, including the belief that those who offend deserve to be punished. 6 Indeed, for many members of the community, this is the primary purpose of the criminal law, as reflected in the appeal of “just deserts” and deterrence-based sentencing, as well as the recent push towards mandatory sentencing. 7 Conversely, a well-known yet “out of fashion in politics” purpose for the criminal law is the rehabilitation of offenders; 8 this approach may involve addressing underlying reasons for offending behaviours, including mental illness. One reason for the importance attached to “just deserts” sentencing is the “common sense” perception that people are less likely to commit a crime if they know that they will be punished for it. 9 Underlying this belief is the assumption that people are reasonable and logical, that is, that they can understand the law. There is surprisingly little evidence to support this proposition, even among people who are capable of recognising the links between behaviour and consequences. A fortiori, it is unreasonable to expect that deterrence should work when focussed on the mentally ill; furthermore, the law has traditionally recognised this and made some allowance for it. 10

3 4 5 6 7 8 9 10 x

Melbourne University Law Review Association Inc, (2010), The Australian Guide to Legal Citation (3rd ed), Melbourne: Melbourne University Law Review Association Inc.

Bijlsma-Frankema, Sitkin & Weibel, 2015; Gostin, 1983. Sales & Krauss, 2015; McEwan, 2003; Foley, 1993. Haney, 1993, 1980. Bagaric, 2015. However, it must be acknowledged that mandatory sentencing for example, may not equate to “just deserts” sentencing. Sentencing is discussed in greater detail in Chapter Two. Bagaric, 2015. Wilson, Park & Draine, 2015; Brown, Hirdes & Fries, 2015; Lurigio, 2011; Munetz & Griffin, 2006; Heibrun & Griffin, 1999; Ogloff & Finkelman, 1999. Traynor, 2002.

Preface

It is clear that the traditional adversarial model is not the most effective means by which to process offenders with a mental illness. 11 Individuals who have been diagnosed with a mental illness are more likely to appear before the courts, to be imprisoned 12 and to repeat their interactions with the criminal justice system, so much so, that some have stated that courts and prisons are merely “revolving doors” for the mentally ill. 13 Over time, the law has developed various mechanisms to try to cope with this: 14 the defence of insanity at common law later codified into legislation; developments in sentencing law to accommodate some of the problems associated with punishing the mentally ill for offences partly caused by their illness; and more recently the problem-solving court model based on principles of therapeutic jurisprudence. 15 In recognition of this growing issue and in an attempt to provide alternative procedures, Australia has followed the lead of other common law jurisdictions such as the United States, the United Kingdom and Canada in introducing several operational mental health diversion programs into the Magistrates’ Courts. Court-based mental health diversion programs are founded on the concept of “therapeutic jurisprudence”, which emphasises the law’s “healing potential to increase well-being”. 16 As such, these programs seek to address some of the underlying causes of criminal behaviour, mental illness or intellectual disability, rather than merely responding to the “symptom”, 17 which is the offending behaviour. 18 This approach has now been adopted by four Australian jurisdictions – South Australia in 1999, Tasmania in 2007, Victoria in 2010 and, most recently, Western Australia in 2013. Although the number of mental health diversionary programs has been steadily increasing, recent research by Lim and Day (2014) confirms that there is a lack of evidence supporting their efficacy, particularly with regard to recidivism in Australia. 11 12

13

14 15 16 17 18

Krameddine & Silverstone, 2015; Castellano & Anderson, 2013; Karras, McCarron, Gray & Ardasinski, 2006. Fisher et al, 2011; Baillargeon & Penn, 2009; Petrila & Redlich, 2008. Krameddine & Silverstone, 2015; Graham, 2007; Karras et al, 2006.

Vogel, Stephens & Siebels, 2014; Dahlin, Grumpert, Torstensson-Levander, Svensson & Radovic, 2009. Kimonis, 2015; Wilson et al, 2015; Grudzinskas, Clayfield, Roy-Bujnowski, Fisher & Richardson, 2005. Winick, Wiener, Castro, Emmert & Georges, 2010; Graham, 2007; Redlich, Steadman, Petrila, Monahan & Griffin, 2005; Poythress, Petrila, McGaha & Boothroyd, 2002; Wexler & Winick, 1991; Wexler, 1990. Wexler, 1990. Berman & Feinblatt, 2005; Boothroyd, Poythress, McGaha & Petrila, 2003; Poythress et al, 2002; Hora, Schma & Rosenthal, 1999; Wren, 1998. xi

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The purpose of the current study is to assess the efficacy of the operation of the Magistrates’ Court of Victoria’s Assessment and Referral Court List using similar procedures to that of Lim and Day (2014). Lim and Day in 2014 and Kestern et al in 2012 suggested this line of inquiry as an area for future research. This book seeks to add to the literature in the areas of mental health courts and therapeutic jurisprudence by providing an example of one such program from Victoria, Australia.

ACKNOWLEDGMENTS I am deeply appreciative of the many people who have supported and encouraged me during the time I have spent writing this Book. In particular, thank you to my family and to my mentors Graham Thomas QC and Professor Brian Fitzgerald whose wisdom, guidance and friendship has been a constant source of inspiration.

Brianna Jade Chesser Lecturer, Criminal Law and Evidence, Thomas More Law School, Australian Catholic University Barrister and Solicitor, Supreme Court of Victoria

June 2016

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TABLE OF CONTENTS Foreword ............................................................................................................................................. v Foreword........................................................................................................................................... vii Preface................................................................................................................................................ ix Table of Cases ................................................................................................................................... xv Table of Statutes............................................................................................................................. xvii

1. Key Concepts.............................................................................................................. 1 2. Treatment of the Mentally Ill as a Social Construct ......................................... 13 3. The Evolution of Therapeutic Jurisprudence, Problem-solving Courts and the Mental Health Court ................................................................... 45 4. Global and Australian Response to the Need for Courts to Address the Needs of Mentally Ill Offenders ....................................................... 69 5. Recent Initiatives in the State of Victoria: A Case Study ................................. 91 6. Does the ARC List Reduce Recidivism? A Quantitative Study ......................... 111 7. Recommendations and Conclusions .................................................................. 127 Appendix One ............................................................................................................. 137 Appendix Two............................................................................................................. 141 Appendix Three .......................................................................................................... 143 Appendix Four ............................................................................................................ 145 Appendix Five ............................................................................................................. 147 Bibliography.................................................................................................................................... 157 Index ............................................................................................................................................... 191

xiii

TABLE OF CASES Codere v R (1916) 12 Cr App R 21 ..................................................................................... 1.70 Daniel M’Naghten’s case (1843) 8 ER 718 ...................................................................... 1.70 Man v R (1990) 50 A Crim R 79 ..................................................................................... 2.190 R v Clarke (1975) 61 Cr Cpp R 320 ................................................................................. 2.190 R v Hadfield (1800) 27 State Tr 1281 ............................................................................... 1.70 R v Porter (1933) 55 CLR 182 ........................................................................................... 1.70 R v Presser [1958] VR 45 ............................................................................................... 2.170 R v Pritchard (1836) 173 ER 135 ..................................................................................... 2.170 R v Sebalj [2003] VSC 181 ................................................................................................ 1.70 R v Sodeman [1936] HCA 75 ........................................................................................... 1.70 R v Stapelton (1952) 86 CLR 358 .................................................................................... 1.70 R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 ....................................................... 2.190 R v Vuadreu [2009] VSCA 262 ...................................................................................... 2.190 R v Willgoss [1960] HCA 5 ............................................................................................... 1.70 R v Wright (1997) 93 A Crim R 48 ................................................................................. 2.190 Veen v The Queen (No 2) (1988) 164 CLR 465 ............................................................. 2.190

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TABLE OF STATUTES COMMONWEALTH Australian Constitution 1901: 1.80, 4.80, 4.90 s 122: 4.80, 4.90

Crimes (Mental Impairment and Fitness to Be Tried) Bill: 1.70 Criminal Code Act 1995: 1.90 s 7.3(8): 1.90 s 7.3(9): 1.90

Mental Health Act 2009: 4.80 s 3: 1.100

TASMANIA Criminal Code s 16: 4.200

Criminal Justice (Mental Impairment) Act 1999: 4.200

Disability Services Act 1986: 1.60 Mental Health Act 2007: 4.80

Mental Health Act 2013: 4.80, 4.200 s 4: 1.120 s 4(2)(k): 1.120

AUSTRALIAN CAPITAL TERRITORY

VICTORIA

Mental Health (Treatment and Care) Act 1994 s 5: 1.100

Children Youth and Families Act 2005 s 344: 2.160

NEW SOUTH WALES Mental Health Act 2007: 4.80 s 4(1): 1.110

Mental Health (Forensic Provisions) Act 1990: 4.130 s 32: 4.130 s 33: 4.130

NORTHERN TERRITORY Mental Health and Related Services Act 2014 s 6: 1.120

Mental Health and related services Act 2004: 4.80

QUEENSLAND Mental Health Act 2000: 4.80 s 12: 1.100 Queensland Criminal Code s 27: 4.110

SOUTH AUSTRALIA Bail Act 1985 s 21B: 4.150

Criminal Law Consolidation Act 1935: 4.150 s 269: 4.160 Intervention Orders Act 2009: 4.150

Court and Other Justice Legislation Amendment Act 2013: 5.100

Crimes (Mental Impairment and Fitness to Be Tried) Act 1997: 1.70, 2.160, 2.170 s 5(2): 2.160 s 6: 2.170 s 6(2): 2.170 s 12(2): 2.170 s 12(2)(a): 2.170 s 12(2)(b): 2.170 s 12(2)(d): 2.170 s 12(5): 2.170 s 15: 2.170 s 20: 1.70, 2.160 s 20(1)(b): 2.160 s 21: 1.70 s 21(2): 2.160 s 21(3): 2.160 s 22(1): 2.160 s 23: 2.160 Magistrates’ Court Act 1989: 5.160 s 4: 5.60 s 4A(5): 5.170 s 4D(4): 5.170 s 4N(6): 5.170 ss 4S(3)(a)(i) to (iii): 5.120 s 4S(3)(b): 5.120 s 4S(3)(c): 5.120 s 4S(3)(s): 5.120 ss 4T(1)(a) to (c): 5.120 ss 4T(1) to (4)(a): 5.130 s 4T(2): 5.140

xvii

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Magistrates’ Court Act 1989 — cont s 4T(3)(a): 5.140 s 4T(3)(b): 5.140 s 4T(3)(c): 5.140 s 4T(3)(d): 5.140 s 4T(4): 5.150 s 4T(4)(a): 5.150 s 4T(4)(b): 5.150 s 4T(4)(c): 5.150 s 4T(4)(d): 5.150 s 4T(4)(e): 5.150 s 4T(4)(f): 5.150 s 4T(4)(g): 5.150 s 4T(4)(h): 5.150 s 4U(2)(a): 5.160 ss 4U(2)(a) to (d): 5.160 s 4U(2)(b): 5.160 s 4U(2)(c): 5.160 s 4U(2)(d): 5.160 s 4U(3): 5.170 s 4Y(2): 5.200 s 4Y(4): 5.200 s 4Y(5): 5.200 s 4Y(6): 5.200 s 4TX(2)(a): 5.120 s 4TX(2)(b): 5.120

Magistrates’ Court Amendment (Assessment and Referral Court List) Act 2010: 5.100 Mental Health Act 1959: 2.70

Mental Health Act 1986: 2.70

Mental Health Act 2014: 1.130, 4.80, 5.20, 5.30, 5.40 s 4(1): 1.100, 1.130 s 11: 5.30 s 181(1)(d): 4.70, 5.40 s 425: 5.30 Mental Hygiene Act 1934: 2.70

Mental Hygiene Authority Act 1950: 2.70 s 10a: 2.70 Public Records Act 1973 s 9: 2.70 Sentencing Act 1991 s 1: 2.180

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s 1(d)(i): 2.180 s 1(d)(ii): 2.180 s 1(d)(iii): 2.180 s 1(g): 2.180 s 5: 2.180 ss 5(1)(a) to (f): 2.180 s 5(2)(d): 2.180 s 6B(1): 5.120 s 18E: 2.190 ss 90 to 94I: 2.180 s 91: 2.190 s 91(1): 2.180 s 91(2): 2.180 s 94(1)(a): 2.180

WESTERN AUSTRALIA Mental Health Act 2014: 4.80 s 6: 1.110

UNITED KINGDOM Criminal Lunatics Act 1800: 1.70 Lunacy Act of 1890: 1.70

Safe Custody of Insane Persons Charged with Criminal Offences Act 1800: 1.70 Wynn Act 1808: 1.70

TREATIES AND CONVENTIONS Convention of the Rights of Persons with Disabilities: 4.20

Convention on the Rights of Persons with Disabilities: 4.20 Declaration on the Rights of Disabled Persons: 4.20 International Covenant on Civil and Political Rights: 4.20

Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care: 4.20 Standard Minimum Rules for the Treatment of Prisoners: 4.20

CHAPTER 1 Key Concepts [1.10] [1.80]

Mental health v mental illness................................................................... 1 Australian mental health legislation ......................................................... 7

MENTAL HEALTH

V

MENTAL ILLNESS

[1.10] Central to the thesis of this book is the definition of mental illness. Terminology remains a controversial issue when discussing the sociology of mental illness and mental health because there are a number of different ways of speaking about mental normality and abnormality in contemporary society. 1 It is true that what has constituted a mental illness has changed considerably over the years, for example homosexuality was once viewed as a form of mental illness, 2 a view that society now challenges and no longer accepts. 3 What constitutes mental illness also varies according to culture. Dammann (1997) uses South American and Native American traditions as an example, where auditory and visual hallucinations are highly valued. However, in contemporary western societies suffering from hallucinations may indicate the presence of a severe mental disorder. It is clear that in order to understand mental illness, it is first necessary to examine the concept of mental health.

Mental health [1.20] Mental health 4 can be described as the capacity of individuals and groups to interact with one another, the community and the broader environment in ways that promote subjective well-being, optimal development and the use of cognitive, relational and affective abilities. Johnstone (2001) suggests that mental health is more than the mere absence of mental illness; it is the realisation of one’s potential, as shaped by several interrelated factors. According to the Australian Institute of Health and Welfare (1999), these factors can include biological factors, environmental factors, gender roles, relationships with others, both intimate and non-intimate, work life, scholarly or educational achievements, as well as other determinants such as structural and socioeconomic factors. 5 However, mental health also requires a subjective analysis, for example, one’s 1

Rogers & Pilgrim, 2010.

3

Kinney, 2015.

2

4 5

Green, 1972.

As defined by a leading researcher in this field, Johnstone (2001) and supported by McSherry and Wilson (2015). Commonwealth Department of Health and Aged Care & Australian Institute of Health and Welfare, 1999, p 5. [1.20] 1

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own life choices can influence all of the factors above. 6 Importantly, this definition has remained constant over the past sixteen years, as it encompasses the full ambit of possible influences on determining mental health.

Mental disorder [1.30] Fistein, Holland, Clare and Gunn (2009) found that modern Commonwealth legislation uses a variety of definitions of mental disorder. This is as one would expect given the different contexts in which definitions become salient. 7 One of the most recent approaches to defining mental disorder is to use a very broad definition, in light of the need to be inclusive. What is clear is that the term “mental disorder” is a diagnostic label that is applied after an individual presenting with a mental health problem has consulted a professional for dealing with their mental illness.

Definition of mental illness [1.40] The meaning of mental illness has changed over time and will continue to evolve in accordance with changing societal values and perceptions. French philosopher and social theorist Michel Foucault (1961) 8 argues that conceptions of mental illness (madness) are cultural (legal, political, philosophical and medical) constructions of a given time and place, that vary from civilization to civilization and time to time. 9 The definition of mental illness itself is problematic, as any definition is undeniably linked to and subject to social construction. 10 A definition that is too narrow may deny access to services. Conversely, if a definition of mental illness is too wide, this may result in unnecessary intervention. 11 The understanding of both physical and mental health and illness is determined to a large extent by the existing beliefs of society about what is socially acceptable and normative. 12 Mental illness (or the absence of mental health) refers to a range of cognitive, emotional and behavioural disorders that interfere with the lives and productivity of people. 13 There is, however, no one single definition of mental illness, as definitions vary across jurisdictions and professions. 14 Individuals diagnosed with a mental illness are distributed among all levels and groups within 6

7 8 9 10 11 12 13 14

Suppose a male with an inherited fortune, very good social skills with a PhD in Nuclear Physics decides to live a lazy life, would that indicate the absence of mental health? As compared with a person from a deprived upbringing who becomes a highly successful leader of an organised crime gang? The presence of mental illness is more than the subjective absence of mental health. UK Department of Health, 1999. Michel Foucault (1961) in the English translation of an abridged edition of Foucault’s 1961 Folie et déraison. Histoire de la folie à l’âge classique edited by Khafa (2000). Schneider, 2009. Busfield, 2001; Shea, 1999. Wilson, 1995. Dixit, 2005. Australian Health Ministers, 2003. Freeman, 1998.

2 [1.30]

| CH 1

Key Concepts

society, 15 and mental illness can take on many different forms. In determining an appropriate definition of mental illness for this book, legal, clinical and social approaches to defining mental illness were considered.

Clinical definitions of mental illness [1.50] Clinical definitions of mental illness were traditionally broader than their legal counterparts. It is rare, however, to find one all-encompassing definition and clinicians have no need for one. An all-encompassing definition would undoubtedly be less helpful than determining how the specific disorder should be classified and subsequently treated. The focus of clinical practice is on the prevention and control of mental illness through treatments that include psychotherapy, psychopharmacotherapy (drug therapy) and other alternative treatments including, but not limited to, electric convulsion therapy or shock treatment. There are two main diagnostic aids and guides used in Australia and throughout the world to classify mental illness. The World Health Organisation’s International Classifications of Disease (ICD-10) was last revised in 2015 and is predominantly used throughout Europe. The ICD-10 defines “mental disorder” (mental illness) as “a general term, which implies the existence of a clinically recognisable set of symptoms or behaviours associated … with … interference with personal functions”. 16 The second international standard that is used in Australia is the American Psychiatric Association’s (APA) Diagnostic and Statistical Manual of Mental Disorders (DSM-5), which was released in May 2013. 17 The DSM-5 is also frequently used in the United Kingdom and the Unites States of America. The DSM-5 defines a mental disorder (illness) as a manifestation of “behavioural, psychological, or biological dysfunction in the individual”. It is: [A] clinically significant behavioural or psychological syndrome or pattern that occurs in an individual and that is associated with present distress … or disability … or with a significantly increased risk of suffering death, pain, disability, or an important loss of freedom … 18

Various Australian agencies have adopted both classification systems. For example, the Australian Bureau of Statistics (ABS) has used an adapted version of the ICD-10 for its surveys (such as the 2001 National Health Survey). In the National Mental Health Plan 2003–2008, 19 both the ICD-10 and DSM-IV-TR 20 classification systems are cited. The Commonwealth Department of Health and Aged Care’s Mental Health Branch (2000), makes the further distinction of classifying mental illnesses as 15 16 17 18 19 20

Robson & Gray, 2007; Li & Browne, 2000; Holmes & River, 1998. World Health Organisation, 2015. American Psychiatric Association (APA), 2013. APA, 2013, p 20. ABS, 2008. This is the previous edition of the DSM-5. [1.50] 3

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either psychotic (which include schizophrenia and some forms of depression) or nonpsychotic (which include phobias, anxiety, other forms of depression, eating disorders, physical symptoms involving tiredness or pain, and obsessive compulsive disorder). 21

Social definition of mental illness [1.60] The term “psychiatric disability” is the preferred term for a mental illness in social literature. 22 However, “psychiatric disability” is narrower than a definition of mental illness. Not all individuals with a mental illness will consider themselves (or be considered by others) to have a “psychiatric disability”. The use of the “disability” label has negative connotations for the sufferer and the community at large. 23 For example, this is reflected in the Disability Services Act 1986 (Cth), where the very narrow definition of “disability” is restricted to those conditions that are “permanent or likely to be permanent”. Irrespective of the perceived limitations of this narrow definition of mental illness as a “psychiatric disability”, it is necessary to consider the social model of disability because it is the language preferred by disability advocates. 24 The social model is underpinned by the view that disability is a function of society’s failure to provide adequate services to ensure that disabled individuals are fully taken into account in its social organisation. 25 This is in contrast to “official” definitions, which locate disability in the individual’s pathology or biology. 26 Ultimately, this model advocates a shift in focus and understanding, where the focus is on “participation” rather than “impairment” for the mentally ill individual. 27

Legal definition of mental illness [1.70] While social and behavioural scientists may seek a theoretically coherent definition, lawmakers want definitions that yield desired contextual results. In a society where liberty is valued, a definition made for the purpose of determining whether a person can be compulsorily detained will be narrowly drawn, but a generous society might also want to define mental illness broadly for the purposes of determining whether a person is entitled to sick leave or social benefits. Moreover, definitions are influenced by their implications. One element of Australia’s definition of mental illness, like much of its legislation and 21

Commonwealth Department of Health and Aged Care, 2000.

23

Green, Davis, Karshmer, Marsh & Straight, 2005.

22

24 25

26 27

Guidry-Grimes, 2015; Oliver & Barnes, 1998.

Disability Council of NSW, 2003.

Corrigan, 2005; Carney, 2003, 2003a. For a comprehensive overview of this shift in policy imperatives see Carney (2003, 2003a). Oliver & Barnes, 1998. Owens, 2015; Lang, 2001.

4 [1.60]

Key Concepts

| CH 1

common law, comes from the English equivalent. It can be traced back to 1807 in legislation that was interpreted in the cases of Hadfield 28 and M’Naghten. 29 In the case of R v Hadfield, James Hadfield suffered from delusions and attempted to shoot King George III. Hadfield was found not guilty by reason of insanity and held in custody even though there was no authority at the time to detain those who were found to be not guilty by reason of insanity. The court held that in order for a man to be deemed to be insane he must, “be deprived of his understanding and memory… and not know what he is doing any more than an infant, than a brute or a wild-beast” per Sir John Mitford, who was the Attorney General, and represented the Crown in Hadfield. The case prompted the introduction of the Criminal Lunatics Act 1800 that allowed for individuals who were acquitted on the grounds of insanity to be kept in custody at the King’s pleasure. 30 In England, in 1807, the House of Commons Select Committee inquiry into the “state of lunatics” was the driving force behind the 1808 Wynn Act, which was concerned with the “care and maintenance of lunatics, being paupers or criminals”. 31

The criminal liability of the insane was not addressed in detail again until the 1843 case of M’Naghten (1843), 32 which was decided in the Old Bailey. 33 Daniel M’Naghten shot Edward Drummond, the Secretary to the English Prime Minister (Robert Peel) who was the intended target. M’Naghten was under the delusion that the Tory Party was persecuting him and that his life was in danger. Drummond died five days after the gunshot wound and subsequently M’Naghten was charged with murder. The issue on the facts in this case was insanity and several witnesses gave evidence at the trial of M’Naghten’s state of mind at the time of the shooting. Ultimately, M’Naghten was acquitted on the ground of insanity. However, this verdict was controversial and Queen Victoria elected to revive an ancient right to refer a question of law to the Law Lords. The verdict in this case was debated within the Parliament of the United Kingdom. The most important issue involved M’Naghten’s understanding of the nature and quality of his act and its legal implications. The legal test was articulated in the judgment of Lord Tindal, who determined that: [J]urors ought to be told that in all cases every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction and to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know that what he was doing was wrong. 34 28 29 30

R v Hadfield (1800) 27 State Tr 1281. Daniel M’Naghten’s case (1843) 8 ER 718; O’Sullivan, 1981. This meant that the individual could be held for an indeterminate and even indefinite period of time.

32 33

Daniel M’Naghten’s case (1843) 8 ER 718. The Old Bailey was the Central Criminal Court of London.

31

34

Killaspy, 2006; Hunter & MacAlpine, 1974.

Per Tindal J at 722.

[1.70] 5

Criminal Courts and Mental Illness

Stephen, in his 1883 volume of the History of the Criminal Law, when discussing the application of the M’Naghten case, contextualises the threshold with a poignant example, of a psychotic individual who cuts off the head of a sleeping man because he thinks it would be great fun to see him search for it when he wakes up. 35 On the basis of Lord Tindal’s judgment, M’Naghten was transferred from prison to the Bethlem Hospital under the Safe Custody of Insane Persons Charged with Criminal Offences Act 1800 (UK), 36 where he stayed for the rest of his life. Subsequent cases have restricted this definition to the requirement that the accused did not know the physical aspects of the circumstances and consequences of his/her act. 37 The Lunacy Act of 1890 set out the parameters for the admission and for the legal identification of insanity. 38 This Act defined a lunatic in s 324 as “an individual who, though once of sound mind, can no longer manage his person or his affairs”. “Though once of sound mind” was included to cover all of the scenarios posed by earlier definitions, such as when a man was born an “idiot”, as well as those who were prone to “frenzies” (mania) and those rendered “lunatics” by virtue of disease, including deafness, becoming blind or dumb. 39 It was under this Act that asylums became the last resort for the insane rather than a means by which to help them to recover. 40

An influential case based on the ruling in M’Naghten is the Australian High Court case of R v Porter, 41 where disease of the mind was held to be more than the “mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control and impulsiveness”. Several cases since that time have assessed the application of the M’Naghten rules in various circumstances for example, irresistible impulse in the case of R v Sodeman 42 and psychopathy in the cases of R v Stapelton 43 and R v Willgoss. 44 In Australia, there have been numerous attempts to refine the M’Naghten rules and to replace these in either a criminal code (as in the Commonwealth, Queensland, Western Australia, the Northern Territory and Tasmania) or other statutory legislation (as in South Australia, Victoria and the ACT). 45 The common law defence of insanity has since been explicitly abolished by the Crimes (Mental Impairment and Fitness to Be Tried) Act 1997 (Vic) and is replaced with the statutory defence of mental impairment. 46 However, in effect, 35 36 37 38 39 40 41 42

43 44 45 46

Stephen, 1883. Dalby, 2006. Schneider, 2009. See the case of Codere v R (1916) 12 Cr App R 21. Killaspy, 2006. Blackstone, 1756. Andrews, Briggs, Porter, Tucker & Waddington, 1997. R v Porter (1933) 55 CLR 182. R v Sodeman [1936] HCA 75.

R v Stapelton (1952) 86 CLR 358. R v Willgoss [1960] HCA 5. Shea, 2001. Victorian Law Reform Commission, 2014. This is discussed in greater detail in Chapter 2.

6 [1.70]

Key Concepts

| CH 1

ss 20 and 21 merely codify the M’Naghten test, where disease of the mind was interchanged with the term mental impairment. This change was discussed by the Attorney-General in the second reading speech for the Crimes (Mental Impairment and Fitness to Be Tried) Bill who explained that the term insanity has been replaced because the former term carries a “historical stigma”. However, the Bill makes it clear that the “new defence of mental impairment has the same meaning as the defence formerly known as the defence of insanity and is to be interpreted accordingly”. 47 This has been affirmed in the case of R v Sebalj 48 where it was held that the term mental impairment should not be construed as changing the common law but rather it should be construed as it was used in the common law defence, “disease of the mind”. 49 This codification is significant as it demonstrates the resilience of the M’Naghten formulation. This is somewhat surprising, however, as the legal implications of the definition differ little from the fundamental principle that if offenders do not possess mens rea, they should be acquitted. 50

AUSTRALIAN MENTAL HEALTH LEGISLATION [1.80] Australia is a country that is divided into six states and two territories. Each state and territory is responsible for creating its own mental health legislation, criminal codes, correctional service and public health system in accordance with the division of powers as stipulated in the Australian Constitution 1901. The various Australian States and Territories turned their attention to a legal definition of mental illness in the 1950s, in the wake of the human rights violations that became apparent during World War Two. 51 The terminology of the United Kingdom’s successive Mental Health Acts, as well as the common law, was used to inform the mental health definitions that were used in the various Mental Health Acts of the Australian jurisdictions. Despite this common antecedent, definitions have varied slightly between States. 52 The current law discloses four broad approaches to defining mental illness in Australia. These approaches vary in terms of their specificity of what does and what does not constitute a mental illness.

47 48

49 50 51

52

Victoria, Parliamentary Debates, Legislative Assembly, 18 September 1997, 187 (Jan Wade, AttorneyGeneral). R v Sebalj [2003] VSC 181 (5 June 2003).

R v Sebalj at [14]. It should be noted that in Queensland and Western Australia there is no general mens rea requirement for the attribution of criminal responsibility unless the relevant offence creating provision expressly requires it. Mullen, Briggs, Dalton & Burt, 2000. Ibell, 2004; Scadding, 1980.

[1.80] 7

Criminal Courts and Mental Illness

Commonwealth [1.90] Under the Criminal Code Act 1995 (Cth), the definition of mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder (s 7.3(8) of the Criminal Code Act 1995 (Cth)). Mental illness is also defined in s 7.3(9) as an “underling pathological infirmity of the mind, whether or long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli. However, such a condition may be evidence of a mental illness if it involves some abnormality and is prone to recur”. This definition stands apart from the definitions of the States, perhaps due to the fact that it is contained in the Criminal Code, rather than in a Mental Health Act.

Victoria, South Australia, the Australian Capital Territory and Queensland [1.100] The legal definition of mental illness used in Victoria comes from the Mental Health Act 2014 (Vic), s 4(1), which defines mental illness as a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory. Importantly, this definition also specifies particular circumstances where a person should not be deemed to be mentally ill. These include the following circumstances: • if a person expresses or refuses or fails to express a particular political, religious, philosophical, sexual preference, opinion or belief;

• if a person engages in sexually promiscuous or illegal or immoral behaviour; and • if the person has been involved in family conflict. Furthermore, this section directs the court not to take into account a person’s level of substance abuse, any antisocial personality traits, a person’s economic or social status or their group memberships. This definition is the same one used in South Australia in s 3 of the 2009 Mental Health Act, in s 5 of the Australian Capital Territory’s Mental Health (Treatment and Care) Act 1994 (ACT) and is extremely similar to the definition found in s 12 of Queensland’s Mental Health Act 2000 (Qld). However, Queensland has taken its definition one step further and has expanded its section to include that “on an assessment, a decision that a person has a mental illness must be made in accordance with internationally accepted medical standards”: Mental Health Act 2000 (Qld) s 12. This added section arguably increases the level of sophistication of the Queensland definition and brings it into line with the requirements of a clinical definition of mental illness.

New South Wales and Western Australia [1.110] Both the Mental Health Act 2014 (WA) s 6 and the Mental Health Act 2007 (NSW) s 4(1) define mental illness as a condition that seriously impairs, either 8 [1.90]

Key Concepts

| CH 1

temporarily or permanently, the mental functioning of a person and is characterised by the presence, in the person, of any one or more of the following symptoms: • delusions; • hallucinations; • serious disorder of thought form; • severe disturbance of mood; or • sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)–(d).

It is clear that this definition is more detailed than its Victorian counterpart and that it provides threshold requirements. For example, in order to meet the threshold definition of mental illness in New South Wales, the mere presence of a thought disorder is not enough; the thought disorder must be serious. Fistein et al (2009) question the use of threshold requirements in definitions of this type and such criticism highlights the degree to which definitions of this nature are a highly political activity. 53

Tasmania and the Northern Territory [1.120] The classifications of mental illness in both Tasmania and the Northern Territory extend the definitions used in other states. In particular, the list of circumstances that do not amount to a mental illness are more directive. For example, s 6 of the Mental Health and Related Services Act 2014 (NT) states that a mental illness is a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person in one or more of the areas of thought, mood, volition, perception, orientation or memory and is characterised: (1)

By the presence of at least one of the following symptoms: a.

(2) (3)

53

delusions;

b.

hallucinations;

c.

serious disorders of the stream of thought;

d.

serious disorders of thought form;

e.

serious disturbances of the mood; or

f.

by sustained or repeated irrational behaviour that may be taken to indicate the presence of at least one of the symptoms referred to in paragraph (a).

A determination that a person has a mental illness is only to be made in accordance with internationally accepted clinical standards. A person is not to be considered to have a mental illness merely because he or she: a.

expresses or refuses or fails to express a particular political or religious opinion or belief, a particular philosophy or a particular sexual preference or sexual orientation; or

b.

engages, or refuses or fails to engage, in a particular political, religious or cultural activity; or

For an in-depth discussion of the impact of thresholds on definitions of mental illness see Noffsinger and Piel in Scott (Ed) (2015) p 136. [1.120] 9

Criminal Courts and Mental Illness

c.

engages, or has engaged, in sexual promiscuity, immoral or illegal conduct or anti-social behaviour; or

d.

has a sexual disorder; or

e.

is intellectually disabled; or

f.

uses alcohol or other drugs; or

g. h.

has a personality disorder or a habit or impulse disorder; or

i.

communicates, or refuses or fails to communicate, or behaves or refuses or fails to behave, in a manner consistent with his or her cultural beliefs, practices or more; or

has, or has not, a particular political, economic or social status; or

j.

is, or is not, a member of a particular cultural, racial or religious group; or

k.

is involved, or has been involved, in family or professional conflict; or

l.

has been treated for mental illness or has been detained in a hospital that provides treatment of mental illness; or

m.

has been admitted as an involuntary patient on the grounds of mental disturbance or complex cognitive impairment; or

n.

has acquired brain damage. 54

The above definition from the Northern Territory is the most comprehensive definition of any Australian State. This definition includes among the list of conditions that do not amount to a mental illness: intoxication (however induced); intellectual or physical disability; acquired brain injury; dementia; and temporary unconsciousness. The Tasmanian definition is found in s 4 of the Mental Health Act 2013 (Tas), see below, and is comparable to the Northern Territory’s definition. 4. Meaning of mental illness (1)

For the purposes of this Act – (a)

(b)

(2)

54

a person is taken to have a mental illness if he or she experiences, temporarily, repeatedly or continually – (i)

a serious impairment of thought (which may include delusions); or

(ii)

a serious impairment of mood, volition, perception or cognition; and

nothing prevents the serious or permanent physiological, biochemical or psychological effects of alcohol use or drug-taking from being regarded as an indication that a person has a mental illness.

However, under this Act, a person is not to be taken to have a mental illness by reason only of the person’s – (a)

current or past expression of, or failure or refusal to express, a particular political opinion or belief; or

(b)

current or past expression of, or failure or refusal to express, a particular religious opinion or belief; or

Mental Health and Related Services Act 2014 (NT) s 6.

10 [1.120]

Key Concepts

| CH 1

(c)

current or past expression of, or failure or refusal to express, a particular philosophy; or

(d)

current or past expression of, or failure or refusal to express, a particular sexual preference or orientation; or

(e)

current or past engagement in, or failure or refusal to engage in, a particular political or religious activity; or

(f)

current or past engagement in a particular sexual activity or sexual promiscuity; or

(g)

current or past engagement in illegal conduct; or

(h)

current or past engagement in an antisocial activity; or

(i)

particular economic or social status; or

(j)

membership of a particular cultural or racial group; or

(k)

intoxication (however induced); or

(l)

intellectual or physical disability; or

(m)

acquired brain injury; or

(n)

dementia; or

(o)

temporary unconsciousness.

It is clear that the Tasmanian definition is not as detailed as its counterpart from the Northern Territory. Notable differences include the specification of any type of intoxication in s 4(2)(k) in the Tasmanian Act; this is presumably attempting to negate the distinction made in some jurisdictions between voluntary and involuntary intoxication. Furthermore, the Tasmanian definition of mental illness does not recognise the impact of a cognitive impairment. In this way, the Tasmanian definition can be distinguished from its counterparts, by excluding the aforementioned conditions that constitute a mental illness. There are no other notable differences between the mental illness definitions of Tasmania and the Northern Territory.

Working definition of mental illness adopted for this book [1.130] For the purposes of this book, the DSM-5 definition of a mental disorder will be relied upon in conjunction with the definition contained in the Victorian Mental Health Act 2014. The DSM-5 55 definition is commonly used in clinical practice in Australia, and is outlined below: A mental disorder is a syndrome characterised by clinically significant disturbance in an individual’s cognition, emotion regulation, or behaviour that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning. Mental disorders are usually associated with significant distress in social, occupational, or other important activities. An expectable or culturally approved response to a common stressor or loss, such as the death of a loved one, is not a mental disorder/socially deviant behaviour (for example, political, religious,

55

APA, 2013. [1.130] 11

Criminal Courts and Mental Illness

or sexual) and conflicts that are primarily between the individual and society are not mental disorders unless the deviance or conflict results from a dysfunction in the individual, as described above. 56

The above definition described the clinical threshold used when defining mental illness. 57 In addition to this definition, this book will also rely upon the definition contained in the Mental Health Act 2014 (Vic) s 4(1), as the legal definition also describes circumstances that do not amount to mental illness. For example, s 4(1) also directs the court not to take into account family conflict, level of substance abuse, antisocial personality traits, a person’s economic or social status or their group memberships as evidence of a mental illness. In the search for a definition of mental illness that covered the essential areas for this book, it was necessary to combine both clinical and legal definitions, perhaps highlighting the need for Parliament to reconsider its definition of mental illness in subsequent amendments.

56 57

APA, 2013, p 20. An interesting absence from any definition of mental illness is personality disorder. A sole diagnosis of personality disorder would not meet the threshold for mental illness, however, if the individual had a comorbid diagnosis of a recognised mental disorder then they could be said to be suffering a mental illness and a personality disorder.

12 [1.130]

CHAPTER 2 Treatment of the Mentally Ill as a Social Construct [2.10] [2.20] [2.150] [2.160]

Introduction ................................................................................................. 13 Historical perspectives of medical interventions used to “cure” mental illness.......................................................................................... 14 Traditional mechanisms for dealing with mentally ill offenders in Australia ............................................................................................. 34 Impact of mental impairment on the progression of a case through the criminal justice system................................................................... 35

INTRODUCTION [2.10] This chapter focuses on reviewing the literature and conceptual foundations of several important areas relative to the handling and processing of mentally ill offenders in the criminal justice system. Mental health, mental illness and the criminal justice system, and the degree to which the three are linked, are examined. The level of dissensus in relation to the definition of mental illness reflects a lack of consensus about what the term entails, and this suggests that understandings of what constitute mental illness are necessarily constructs, and may reflect the differential capacity of different people and groups to influence understandings of what constitutes mental health and illness, rather than reflections of shared understandings. This in turn has implications for treatment. This chapter will also give a brief overview of the treatment of the mentally ill in both England and Australia, from around 1800 but focusing mostly on the past 100 years. The timeframe allows for the tracing of the methods used to treat the mentally ill from the end of the classical period through to the Modern and Postmodern ages. This coincides with the institutionalisation movement, the development of the scientific approach to medicine and the development of psychiatry. 1 Tracking the treatment of the mentally ill person, both medically and socially, offers some insight into contemporary community values and sentiments, and thereby the context within which the legislation is developed. Mental illness, and its problematic treatment as a form of social deviance, will be discussed and compared with “crime”. These two forms of deviance are in some ways distinct, but nonetheless overlap and one consequence of this is that the criminal justice system has needed to adapt to adequately accommodate the needs of offenders who suffer from a mental illness. 1

Ibell, 2004. [2.10] 13

Criminal Courts and Mental Illness

HISTORICAL PERSPECTIVES OF MEDICAL INTERVENTIONS USED TO “CURE” MENTAL ILLNESS [2.20] To fully understand the contemporary trends in the treatment of the mentally ill, both socially and medically, and the link between mental illness and the criminal justice system, it is important to recognise the variety of ways that societies have reacted to what would be regarded as mental illness in modern western democracies. 2 Mental illness is not new, but as noted in the previous chapter, its nature can vary over time and place. Responses have also varied. One strain of thinking links it to causes such as sorcery, spiritual/demonic possession or the evil eye. 3 Since misfortune in general was also attributed to such causes, the treatment of physical ailments and treatments often had little to do with the cause of the mental ailment, except insofar as treatments had placebo or deterrent effects. During the classical period, “realigning the humours” through purging and bloodletting enjoyed considerable (and largely unjustified) popularity as a therapeutic tool. 4 Sedgwick (1982) 5 identified two streams of psychological treatment in antiquity, treatment of various areas of the body to curb mental unease and good counsel (psychotherapy). Yet another response was to assume that at least some forms of mental illness were untreatable. This had become the characteristic response of European countries where until the end of the nineteenth century “lunacy” was generally not considered to be a medical condition, but rather a fact of life. 6 Often, the preferred method of “treatment” was to segregate the mentally ill from the general population. More often than not, this was done at the suggestion of and under the guidance/supervision of the church. The family of the mentally ill person played a significant role at this time, as they were often the group who wanted to “free themselves from the shame” that was associated with the mentally ill person. 7 The separation and segregation of town “lunatics” was common practice in communities throughout medieval history. Initially this segregation was done within the community, with the town hall or water tower being used to house the local “lunatic”. 8 However, towards the end of the middle ages, regional asylums began to increase in use and popularity, with the most notorious of these facilities being the London based Priory of Saint Mary of Bethlem in 1247, which later became known colloquially as Bedlam. Other such institutions 2 3

4 5 6 7 8

Vogel et al, 2014. Pietikäinen, 2015; Angermeyer & Dietrich, 2006; Porter, 2002.

Greenstone, 2010. See Cresswell and Spandler (2009) for a discussion of the importance of Sedgwick’s (1982) work. Ibell, 2004; Shorter, 1997; Scull, 1993. Some medical conditions are also accepted as “facts of life”, this is self-evidently the case for mortality. Fernando, 2010; Mellett, 1982. Disturbingly, there have been recent reports out of Bali that indicate that conditions for the mentally ill mimic those that were available in the time of the Priory of St Mary of Bethlem. See an article published in The Australian by Cassrels (2015).

14 [2.20]

Treatment of the Mentally Ill as a Social Construct

| CH 2

existed throughout Europe and Dorothea Dix (1843) reported that similar conditions existed in Massachusetts at the beginning of the nineteenth century. 9 These asylums were designed to protect the patients from themselves, and the community in the name of safety. Within the specific building, supported financially, either by private houses or the local authorities, the mentally ill lived apart from mainstream society, with a staff of attendants under the supervision of what we now would call psychiatrists. 10 Apart from infrequent visits from relatives, Scull (1993) suggests that the mentally ill formed a section of society that was largely unknown to the community at large. Once the mentally ill were committed they were rarely discharged; this could be due to a number of factors, including the lack of appropriate treatment techniques and the pathologising impact of detention of this type. 11 By the late 1600s, psychiatrists assumed that all “lunatics” had disordered brains, and lunacy was treated as a distinct abnormality (no longer an accepted fact of life). However, treatments focussed largely on other bodily functions, such as the digestive system and the temperature of the body. 12 Lobotomy did not reach “popularity” until the late 1800s and was a notoriously difficult procedure to complete with effective resultshowever,. 13 Consequently, treatments were limited and very crude including paraldehyde (a central nervous system depressant), laxatives and cold baths. Importantly for this book, there is one consistent theme. Societies seemed to have recognised the difference between mental illness and crime and have treated the former as akin to illness and therefore something to be “cured” either in the home or in asylums. 14 This contrasts with crime where the response was the intentional infliction of death and pain. Over the course of the next century, the bio-determinist model of psychiatry became predominant, particularly in the pre-World War I era. 15 This hereditybased model assumed that any form of lunacy and other forms of deviance, such as criminality and idiocy, occurred as a result of a tainted gene pool. 16 This was almost exclusively associated with members of the lower or working classes, as it was thought that members of the aristocracy and royalty had “blue blood” and 9

10

Shorter, 1997.

11

Mellett, 1982. In 1403 King Henry IV ordered a Royal Commission to investigate allegations of embezzlement and malpractice at the Bethlem Hospital (formerly known as the Priory of Saint Mary of Bethlehem). The report confirms that as early as 1330 the Bethlem Hospital was treating both psychological and physiological injury (Killaspy, 2006; Allderidge, 1995). Hinshaw & Stier, 2008; Suzuki, 2006; Walton, 1979.

13

Rogers & Pilgrim, 2010.

12

14 15 16

Sue, Sue, Sue & Sue, 2015.

It seems however, that there was a distinction between a mental illness and a physical illness insofar as those who were treated for physical illnesses in hospitals soon died of their (or someone else’s) illness, whereas inmates of asylums could live for many years, since mental illness was not infectious. Rogers & Pilgrim, 2010. There are of course exceptions to this, one being the work of Sigmund Freud who linked the development of mental illness to the pathologies of the bourgeoisie in Vienna. Pilgrim, 2008.

[2.20] 15

Criminal Courts and Mental Illness

were therefore immune to these sorts of maladies. 17 This theory began to deconstruct when England’s “finest blood” were among those who returned from the First World War suffering from “shell shock” or what is now known as Post-Traumatic Stress Disorder. 18 When the heredity model lost its traditional acceptability, 19 psychiatrists turned to other explanations for mental distress. By the end of the First World War, Rogers and Pilgrim (2010) report that treatment for mental illness became more eclectic, with neurosis being treated psychologically and lunacy being treated by physical or biological means. 20 Despite these iterative changes, it was not until the end of the Second World War that large changes were made in the mental health landscape within the western world.

The process of deinstitutionalisation [2.30] The first alternatives to asylums were suggested in the 1920s and early 1930s. However, as Fakhoury and Priebe (2007) have shown, by the 1950s there were more patients in asylums world-wide than at any other time in history. 21 This is in line with Ibell’s findings (2004), which suggest that asylumdom continued relatively unchanged until shortly after World War II, only to undergo rapid change due to the politico-economic, social and pharmaceutical changes that followed the Second World War. Doessel, Scheurer, Chant and Whiteford (2005) suggested that this was supported by the formation of the United Nations on 24 October 1945, the creation of the World Health Organisation on 7 April 1948 and the Declarations of Human Rights under the UN Charters, 22 which, arguably, assisted in the eventual deinstitutionalisation of the mentally ill. 23 The cost and overcrowding of asylums, as well as a lack of an acceptable standard of care, led governments and societies alike to consider alternatives to providing treatment for the mentally ill. Thus began the process of deinstitutionalisation.

Deinstitutionalisation [2.40] In the context of mental illness, deinstitutionalisation can be described as the process of shifting care and support for individuals diagnosed with a mental illness from custodial asylums or inpatient mental health facilities out into a community-based independent living setting. 24 Deinstitutionalisation has three main components: 17 18 19 20 21 22 23 24

However, while this approach may have been dominant in the eugenics conscious late 19th and early 20th centuries some, including Freud, saw more to this, see the footnote above. Winter 2000. Rogers & Pilgrim, 2010. Rogers & Pilgrim, 2010. However, it is important to note that there were also more people alive than at any other point in history, therefore the validity of this remark by Fakhoury and Priebe (2007) may be limited. The creation of these conventions is symptomatic of the Nazi’s regime and their manifest breaches of human rights in general and also in relation to mental illness. Doessel et al, 2005. Fakhoury & Piebe, 2007; Krieg, 2001.

16 [2.30]

Treatment of the Mentally Ill as a Social Construct

1.

the release of mentally ill individuals from hospitals;

2.

their diversion from hospital admission; and

3.

the development of alternative community care facilities. 25

| CH 2

Graham (2007) has described the process of deinstitutionalisation as one of the most significant occurrences in the history of mental health policy and practice, but Lamb and Baldrach (2001) have concluded that the first two processes of deinstitutionalisation have progressed far more rapidly on an international and national scale than the final component. The movement of the mentally ill into the community has not necessarily meant that they have had access to community care. However, the deinstitutionalisation of the mentally ill and their movement into the community has transformed the mental health landscape. 26 In Australia, it was pivotal to the first iteration of the National Mental Health Strategy, 27 which is discussed in greater detail in the section below.

Australian perspective [2.50] Newton et al (2001) paint a bleak picture of Australia’s historical treatment of the mentally ill, suggesting that the mentally ill have traditionally had “no voice” in society and that Australian Society, like many of its Western counterparts, subscribed to the “out of sight and out of mind” principle for the treatment of the mentally ill. The deinstitutionalisation movement in the Western World, and indeed in Australia, arose from a number of developments. In Australia, as elsewhere, one such incentive came from the reluctance of the government of the day to devote the funding needed to provide adequate and humane care to the mentally ill or to pay for the much needed updating and modernisation for the ailing mental health facilities throughout the country. 28 Newton et al (2001) point to other influential factors in the deinstitutionalisation movement, such as the civil libertarian movements of the 1960s which deeply criticised the inhumane treatment of the mentally ill within institutions 29 and other factors such as the increase in the number of community care facilities and the decrease in the number of assessments and therefore admissions to the traditional institutional facilities. 30

Psychopharmacology movement [2.60] Another extremely important factor in the deinstitutionalisation of the mentally ill in Australia was the development of new drug therapies. During the 25 26 27 28 29

30

Lamb & Baldrach, 2001, p 1039. Smith & Gridley, 2006; Newton, Rosen, Tennant & Hobbs, 2001. Graham, 2007. Rosen 2006; Young & Ashman, 2004; Newton et al, 2001; Hazelton, 1995. However, it must be acknowledged that some money was spent on resourcing limited community care options, although it was clear that more ought to have been done (Graham, 2007). See, for example, Wing, 1962. Hoult, 1986.

[2.60] 17

Criminal Courts and Mental Illness

1950s, however, the use of medication to treat psychological illness increased markedly 31 and this provided, for the first time, a unique opportunity to make “care in the community” a viable option in the treatment of the mentally ill. The widespread availability of psychotropic medications had a profound influence on the impetus for deinstitutionalisation. In particular, in 1955, the drug Thorazine (Chlorpromazine), an antipsychotic and tranquilizer medication, served as a catalyst for the release of many mentally ill individuals from institutions, such as asylums, into independent living arrangements in the wider community.

Australia's experience of deinstitutionalisation [2.70] The deinstitutionalisation movement, which began in Australia after the Second World War, 32 culminated in the early 1990s. The overall decline in the number of psychiatric inpatients had decreased by an overall total of 86%, from 281 beds per 100,000 members of the Australian population during the 1960s, to 40 beds per 100,000 members of the Australian population in 1992. 33 In early 1990, under the then Labour Government, the many asylums in Victoria were consuming 45% of the State budget for general health services. 34 Deinstitutionalisation was a way of decentralising financial accountability, as well as service accountability. Although the slow process towards deinstitutionalisation began after the Second World War, the Australian Mental Health Strategy of 1992 was the first national response to addressing deinstitutionalisation in Australia. 35 Sealy and Whitehead (2004) found that the deinstitutionalisation process remains incomplete because there are no real measures in place to determine when the expansion of community-based care services for the mentally ill will be complete. 36 Although the deinstitutionalisation movement in Australia undoubtedly had noble intentions, it was not executed in the best or most effective way. The shift of the mentally ill from institutions back into the community created a number of challenges in and of itself, primarily due to the lack of outpatient treatment options and a distinct lack of community support, which ought to have been in place before the mentally ill individuals were released into the community. Lamb and Shaner (1993) argue that mentally ill individuals who do not receive adequate levels of care in the community after a discharge from an institution are likely to become even more ill. Ceasing 31

32 33 34

35 36

Gronfein, 1985.

Smith & Gridley, 2006. Burdekin, Guilfoyle & Hall, 1993. Hamden, Newton, McCauley-Elsom & Cross, 2011; Newton et al, 2000. Hamden et al, 2011. Hamden et al, 2011.

18 [2.70]

Treatment of the Mentally Ill as a Social Construct

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treatment could make these individuals vulnerable to homelessness and encounters with the criminal justice system, which could ultimately lead to an increased risk of incarceration. 37 Burdekin et al (1993) report that there were many failings in the approach taken to deinstitutionalisation in Australia, due to the seeming haste in which some institutions closed their doors and limited the number of available beds. This resulted in the increased vulnerability of the mentally ill to a number of factors including: poverty, boarding house squalor, increased burden on families and carers, increased burden on non-government organisations, insufficient resources, inadequately trained staff, insufficient staffing of community centres and importantly for this enquiry, increased entry into the criminal justice system. 38 The only longitudinal study of deinstitutionalisation in Australia was conducted by Young and Ashman (2004). These findings are supported by those of Burdekin et al (1993), insofar as they too found that the deinstitutionalisation process was carried out without the appropriate community infrastructure in place to support the transition into the community for the mentally ill. However, Young and Ashman (2004) also found that deinstitutionalisation was followed by positive behavioural changes for some mentally ill individuals who were placed back into the community, even those who had been institutionalised for periods longer than a decade. Newton et al (2001) state that the process of deinstitutionalisation should have ensured that the quality of life for the residents, at the very least, should match or exceed their level of care within the institution. This required a “commitment to proper planning and adequate resourcing within the community”. 39 However, it is clear from the literature on this issue, that the shift from an institutional facility to community-based living for the mentally ill was not systematically planned and there were very few adequate community support systems in place prior to moving the mentally ill out into the community. 40 As in other countries, Australia’s move away from the detention model was gradual and iterative. Each change would have had its own micro-history, some of which has already been lost from memory. 41 But the measures have left their footprints in the Victorian statutes, parliamentary debates and official reports of varying degrees of solemnity. The timeline presented below (Table 1) adapted from Smith and Gridley (2006), summarises the social and legislative (domestic, national and international) changes that influenced the progress of the 37

38 39

40 41

Krieg, 2001.

Morrissey & Goldman 1986.

Newton et al, 2001, p 160.

Fakhoury & Priebe, 2002; Moxam & Pegg, 2000. Whiteford & Buckingham, 2005.

[2.70] 19

Criminal Courts and Mental Illness

deinstitutionalisation movement in Australia, and in particular in the State of Victoria. The content of successive developments is explored. If Victoria’s path had been qualitatively different to that of other western jurisdictions, it might have been necessary to examine the sources of Victorian exceptionalism, but the successive measures lie firmly within the standard deinstitutionalisation model. Table 1 also presents a summary of information that was catalogued by Belinda Robson, in her 2008 publication From Mental Hygiene to Community Mental Health. Robson (2008) has based her research into the public policy of Victoria on the archives of: the Public Record Office of Victoria; 42 Royal Australian and New Zealand College of Psychiatrists Annual Reports; and the Department of Human Services.

Table 1 Timeline summarising significant events in the mental health landscape Date

States (Victoria or National or Outcome NSW) International 1930s Voluntary treatment of mental illness; individuals could ask for treatment without being admitted to an asylum as a lunatic. This was controlled by the Lunacy Department of the relevant State and Territory governments. 1934 - 1944 Department of The Department of Mental Mental Hygiene Hygiene was established in (Victoria) 1934 following the proclamation of the Mental Hygiene Act 1934 (Vic). The Department was responsible for the development and direction of the policy governing the treatment of the “mentally ill, the intellectually handicapped and inebriates” and for the establishment and administration of institutions for their care for the period 1934 to 1944. Previously, this had been overseen by the Lunacy Department. In 1944, this function was taken over by the Mental Hygiene Branch, within the new Department of Health.

42

A significant portion of the Victorian State Government archives are held by the Public Record office and are sealed to the public, in accordance with s 9 of the Public Records Act 1973 (Vic).

20 [2.70]

Treatment of the Mentally Ill as a Social Construct

Date

States (Victoria or NSW) 1944 – 1950 Mental Hygiene Branch (Victoria)

National or International

1948

World Federation for Mental Health was formed by the World Health Organisation.

1948

1950-1959

1955

The Royal Australian and New Zealand College of Psychiatrists began to consider questions of mental health literacy. The Mental Hygiene Authority (changed its name from the Mental Hygiene Branch).

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Outcome The Mental Hygiene Branch was established in 1944. It assumed responsibility for those functions previously administered by the Department of Mental Hygiene, namely the development and direction of the policy governing the treatment of the mentally ill, the care of the mentally retarded and the care and treatment of alcoholics and drug dependent persons and for the establishment and administration of institutions for their care. The goal of this society was to foster mental health through global harmony (Brody, 2004). In 1948 a subcommittee was formed to “investigate the possible avenues of propaganda in education in the matter of mental hygiene”.

The Mental Hygiene Authority Act 1950 (Vic) codified, inter alia, that the functions of the Mental Hygiene Authority were to include the “provision for the treatment and measures for the prevention of mental defect disorder and disease” (s 10a). Report authored by This report, inter alia, pointed Stroller and Arscott to the need for care in the (1955) on the community and discussed Mental Health the need to deinstitutionalise needs of Australia. the mentally ill.

[2.70] 21

Criminal Courts and Mental Illness

Date

States (Victoria or National or NSW) International 1959 The Mental Health Authority (changed its name from the Mental Hygiene Authority) 1960s Psychotropic drug revolution 1962 - 1978 The Mental Health Authority came into being in 1962, under the terms of the Mental Health Act 1959 (Vic).

1970s

1970s 1973

1978

22 [2.70]

Outcome The Mental Health Act 1959 (Vic) was created and led to a separation of the terms “mentally ill” from “intellectually defective”.

Between 1944 and 1978 the Mental Hygiene Branch/ Mental Health Authority greatly increased its services to patients and the public with the establishment of several clinics and children’s facilities. It adopted a policy of regionalisation of facilities for the retarded and mentally ill, providing local accommodation in a less institutionalised environment. In 1978, the Mental Health Authority was abolished and succeeded by the new Health Commission. Women’s movement begins to challenge the commitment of women to psychiatric facilities due to social issues, such as rape and domestic violence Whitlam era, Sax Commission funds Community Health Program This program provided for The Commoneight new Community mental wealth Mental Health and Related health services throughout Victoria. Services Program was established. In 1978, the Commission of Public Health became the Public Health Division within the Health Commission of Victoria.

Treatment of the Mentally Ill as a Social Construct

Date 1983

1985

1986

1986

1988

1992/1993

States (Victoria or National or NSW) International Richmond (1983) enquiry into NSW psychiatric system recommends the closure of some large institutions and the transfer of resources to fund community mental health care facilities. On 26 August 1985 the Health Commission of Victoria changed its name to Health Department of Victoria Commonwealth Disability Services Act New Mental Health Act 1986 (Vic) Barclay Report (1988) to NSW Government

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Outcome

Treatment preference in this Act was for the least restrictive environment. Reports mark the inception of Eisen-Wolfenden National Planning for the Report (1988) to provision of Mental Health the Commonwealth Government Services. Release of the new This encouraged all States National Mental and Territories to adopt a Health Policy – The National approach to the Commonwealth treatment of mental illness, allocated this included the closure of $250 million for the stand-alone psychiatric period 1992/1993- treatment facilities. 1997/1998 for: • National Mental Health Plan • National Community advisory group on Mental health • Similar State Groups also established.

[2.70] 23

Criminal Courts and Mental Illness

Date

States (Victoria or NSW)

1993

2009

2013

Mental Health Act Implementation Project Advisory Group for the creation of an updated Mental Health Act in Victoria.

2014

New Mental Health Act for Victoria

National or International Human Rights and Equal Opportunities Commission released its Report of the National Inquiry into Human Rights of the Mentally Ill. (Australian Human Rights Commission, 1993) The Bradley report was released in the United Kingdom.

Outcome This report focussed on the experiences of the mentally ill and pointed to deficiencies that had become apparent since the deinstitutionalisation movement.

Recommendations of this report included: • That Criminal Justice Mental Health Teams are made mandatory in the National Health Service. • That all probation staff and the judiciary should receive mental health and learning disability training (Gough, Magness & Winstanley, 2012) The Mental Health Act Implementation Project Advisory Group first met in March 2013. This group brought together key stakeholders with relevant expertise and experience to provide advice and input into implementation of Victoria’s new mental health legislation. The Act commenced on 1 July 2014 and is now the law governing compulsory Mental Health treatment in Victoria.

Impact of mental illness on Australia [2.80] It is important to have an understanding of the scope of this issue in Australia and the impact that mental illness has on the Australian community. Mental illness is a complex social issue in Australian society. A large number of Australians experience mental illness, and this is often associated with other forms of social and economic disadvantage. Mental illness has an immense effect on the Australian population in terms of public health, social interactions, 24 [2.80]

Treatment of the Mentally Ill as a Social Construct

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morality and the economy. 43 Approximately one in five people in Australia will be affected by a mental health issue (of varying severity) at some point in their lives. 44 In Australia alone, data published by the Australian Bureau of Statistics suggests that in 2007, 45% of the adult population aged 16–85 years, approximately 7.3 million people, had at some stage within their lifetime suffered from one or more symptoms of a mental disorder. Mission Australia (2013) published mental illness statistics in 2013 and found that in the adult population, mental illness prevalence is one in five and in young Australians this figure is increased to one in four. 45 The statistics are alarming, however, due to under-reporting and sample limitations, most estimates of mental illness prevalence are most likely underestimates of actual prevalence. 46 Furthermore, rarely do sources of statistics collect information relating to specific groups of people within our community. For example, there is limited information about the prevalence of mental illness in certain groups, for example, people from culturally and linguistically diverse backgrounds, as well as people living in institutions such as hospitals, colleges, sheltered accommodation, members of the armed services and homeless persons. 47 These biases mean that the statistics almost certainly under-represent the mentally ill and the prevalence of mental illness in the Australian community. 48 In recognition of its global significance, mental health was designated as one of the five national health priority areas for Australia, and the State and Federal Governments made a commitment to improve the lives of people with a mental illness and the people that care for them. 49 Although the aims of the deinstitutionalisation movement were noble, simply ratifying and adopting strategies did not sufficiently change community perceptions of the mentally ill, nor did it enhance the outcomes for many individuals diagnosed with a mental illness. 50 Perceptions of the mentally ill have been labelled entrenched “habits of perception” that, according to Walker (1998), erase or deform the mentally ills’ moral kinship among human beings. Johnstone (2001) suggests that the governments and peoples of Australia should work collaboratively to identify and challenge culturally normative prejudice against people who suffer from a mental illness. Johnstone (2001) further suggests that unless this prejudice is rectified in the minds of Australia’s peoples, it will stand as a barrier to the success of any solution that seeks to redress prejudice against mentally ill persons and the stigma that is associated with mental illness. 43 44 45 46 47 48 49 50

Whiteford & Buckingham, 2005. Department of Health, 2007; Commonwealth Department of Health and Aged Care, 2000. Mission Australia Youth Survey, 2013. Fulbrook & Lawrence, 2015. Andrews, Hall, Henderson & Teeson, 1999. Fulbrook & Lawrence, 2015. McLennan, 1999. Corrigan & Fong, 2014. [2.80] 25

Criminal Courts and Mental Illness

Mental illness as social deviance [2.90] Before behaviour can be identified as being a symptom of a mental disorder, it must be deemed to be abnormal, aberrant or deviant. 51 Deviance describes an action or behaviour of an individual or group that violates social norms, including formally enacted rules, such as laws. 52 Durkheim (1895) claimed that deviance was an essential part of social organisation and found that there were four important functions of deviance: 1.

to affirm cultural views and norms: there can be no good without evil or no justice without crime;

2.

to define moral boundaries: society learns what is right and wrong by defining some behaviour as deviant;

3.

deviance encourages communities to band together and to react to deviance in a certain prescribed way; and

4.

deviance can push social boundaries: this can lead to change. 53

After a consideration of Durkheim’s (1895) definition, deviance can also be described as behaviour that is at the far end of relevant normal distributions, where saints and high achievers would be treated as deviants alike, as their behaviour falls within the “virtuous” category and therefore not within normal distributions. 54 Another view of mental illness as deviance was discussed by Szasz (1961) who argued that mental illness is, in fact, a social construct and what psychologists and psychiatrists label as mental illness is, in fact, what society has labelled “deviant”. 55 Krieg (2001) postulates that if members of the community associate and equate mental illness with deviance, it would be extremely difficult for the deinstitutionalised mentally ill individual to succeed in a community-based setting. It is one thing to label behaviour as deviant; it is another to decide what follows from this and whether such deviance is to be encouraged or discouraged. Where deviant behaviour is discouraged, responses include punishment, exile, treatment and possibly alleviation of the conditions that were responsible for the deviant behaviour. Samuel Butler (1872), in his novel, Erewhon, postulated a society in which illness was punished and crime was treated; for example, he is “suffering a bout of embezzlement”. This provides the link between deviance and treatment in that responses to deviance vary and are related to perceptions of what causes the deviance. An important prior issue that must be considered is whether or not a person’s conduct evidences sickness rather than depravity. One sign of whether a symptom reflects sickness is the degree to which the individual takes active 51

Haslam, Ban & Kaufmann, 2007.

53

Durkheim (1985) cited in Macionis & Gerber (2010), p 200.

52

54 55

Macionis & Gerber, 2010.

Lukes, 2014.

Szasz, 1961.

26 [2.90]

Treatment of the Mentally Ill as a Social Construct

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steps to be cured. This was considered by Talcott Parsons (1951), who described four possible consequences when defining the role of the sick in society: 1.

The sick person is excused by society from fulfilling his or her normal social obligations, such as going to work every day. He or she may legitimately, for instance, lie in bed all day.

2.

The sick person is not blamed for his or her condition and, therefore, need not feel guilty about his or her unfulfilled social obligations.

3.

It is recognised by both the patient and society that he or she must want to get well and make every effort to do so by recognising the need for outside help.

4.

The role of the sick person is only legitimised when he or she cannot help being sick. 56

The patient in this scenario was supposed to place himself or herself into the hands of those appointed by society as being technically competent to help, namely, doctors and in particular, psychiatrists. What is important here is the tacit understanding that it is the patient’s role to cooperate with the specialist in order to get well. 57 Parsons (1951) suggests that some may see illness as inappropriate behaviour, insofar as the patient fails to fulfil his or her other expected role in society, which stresses restoration to the normal societal role as an essential part of therapy. This presupposes that society as a system is ideally in a state of equilibrium, so that, for example stress and change would too be seen as dysfunctional Further, Andersen and Taylor’s (2009) discussion of Parsons (1951) suggests that he also assumes that the doctor will be accepted as the only technically competent person to assist the patient. This, however, does not acknowledge the input of any others within the community. This sort of view can lead to the controversial opinion of mental illness as a form of social deviance. It is true that not all deviants are mentally ill but most mentally ill people can be considered deviant, as mental illness or mental disorder is not “normal”. This can be framed within the three main theoretical frameworks of sociology. Functionalists consider that by recognising mental illness, society upholds notions of conforming behaviour. By contrast, conflict theorists and labelling theorists believe that the people in a society with the fewest resources are the most likely to be labelled mentally ill by other members of the same community. 58 The functionalist perspective is the most relevant for this book as it acknowledges that mental illness can be viewed as a form of social deviance. This leads to an interesting dichotomy, if as labelling theorists suggest, mental illness is simply an arbitrary label, devoid of any meaning, then there is no reason that the mentally ill should be treated any differently in the criminal justice system. If, however, the label of mentally ill is given some 56

Parsons, 1951; adapted by Andersen & Taylor, 2009.

58

Scheff, 1966. This is the case only if and insofar as being deviant involves negative consequences. Sometimes a person may be relieved to be diagnosed with a mental illness, since this provides an explanation for thoughts that the person finds unpleasant. It may go some way towards excusing otherwise inexcusable behaviour.

57

Andersen & Taylor, 2009.

[2.90] 27

Criminal Courts and Mental Illness

meaning, and if it is something that can be cured, then it is appropriate for this group of people to be given special treatment and extra resources in the criminal justice system. This issue is most effectively exemplified when examining the development of changing community perceptions of mental illness, as discussed below.

Community perceptions of the mentally ill: labelling leads to stigmatisation [2.100] Where the community forms perceptions about the mentally ill and ascribes a particular negative label to them or their behaviour, the stigmatisation process becomes relevant. When considering the conceptualisation of this process, it is important to note the components of a stigmatisation reaction and its consequences: this includes labelling, stereotyping, cognitive separation, emotional reactions, status loss and discriminations. 59 Stigma was defined in a leading article by Link and Phelan (2001) whose explanation of stigma focuses on cognitive processes of information, rather than on the discrimination and exclusion that a stigmatised person experiences. 60 In creating this model, the authors were responding to the then current view of the stigmatisation process, as one that singles out the individual as the source of the “problem”.

Link and Phelan's components of stigma [2.110] Link and Phelan (2001) 61 outlined the process of stigmatisation. First, community members label and distinguish human differences. Secondly, dominant community and cultural beliefs link those differences to undesirable characteristics or negative stereotypes. Thirdly, the labelled persons are placed in a distinct category that is separate from the community. As a result of being distinguished from the community, these individuals experience status loss and discrimination: stigmatisation. Thus, as articulated by Link and Phelan (2001), the term stigma is applied when: [E]lements of labelling, stereotyping, separation, status loss and discrimination co-occur in a power situation that allows them to unfold. 62

Stigmas about mental illness have long been endorsed by the community at large 63 and a number of studies suggest that the majority of the citizens in many western countries have stigmatising attitudes towards individuals diagnosed with a mental illness. 64 Mental illness and the stigma associated with it have been the subject of numerous academic enquiries over many years and although it has been suggested that we have come a long way, it is readily acknowledged 59 60 61 62 63 64

Corrigan & Fong, 2014; Link, Yang, Phelan & Collins, 2004; Goffinan, 1963. Phelan, Lucas, Ridgeway & Taylor, 2014; Link et al, 2004; Link & Phelan, 2001; Sayce, 1998. The model suggested by Link and Phelan (2001) has been adopted in 3288 subsequent studies. Link & Phelan, 2001, p 367. Mayville & Penn, 1998. Phelan, Link, Stueve & Pescosolido, 2000; Hamre, Dahl & Malt, 1994; Brockington, Hall, Levings & Murphy, 1993; Bhugra, 1989; Link, 1987; Roman & Floyd, 1981; Rabkin, 1974.

28 [2.100]

Treatment of the Mentally Ill as a Social Construct

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that we have a long way to go. 65 The stigma that surrounds the mentally ill and mental illness has consequences not only for the individual sufferer and their family but also for the community as a whole. 66 In a study conducted by Kelly and McKenna (2004), it was found that the community is afraid of the mentally ill, with the perception that they are dangerous, not only to themselves but to other members of the community. In addition, a study conducted by Wallach (2004) found that short bursts of social exposure to mentally ill individuals increased social restrictiveness 67 and that this in turn compounded the view that mentally ill individuals are dangerous to the community at large. French (1987) found that beliefs of this type cause rejection, stigmatisation, victimisation and harassment of mentally ill individuals. Corrigan and Watson (2002) point out that the impact of this stigma is two-fold: there is the public stigma or negative belief about a particular class of persons, the mentally ill, and as a consequence of this stigma there is often the self-stigmatisation of the mentally ill, which can lead to disengagement from the community. 68 This perception is worsened by popular media portrayals of the mentally ill. 69 In a leading study Mayer and Barry (1992), found that there were three typical representations of the mentally ill within popular films: first, that all people diagnosed with a mental illness are “homicidal maniacs” who ought to be feared; secondly, that they have child-like perceptions of the world; and, lastly, that in some way the mentally ill are responsible for their illness because they are very weak in character. Corrigan and Watson (2002) point out that these perceptions remain largely unchanged and lead to three common responses in populations: fear and subsequent exclusion of the mentally ill person; authoritarianism where the mentally ill are seen as irresponsible and incapable of making life decisions for themselves; and benevolence, which stems from the stigmatised belief that all mentally ill persons are childlike and must be cared for by others. 70 The responses of the community to the mentally ill determine how individuals diagnosed with a mental illness seek or avoid help and medical/ psychological assistance, how they comprehend their experience and how they are regarded and treated by the community. 71 Corrigan and Watson (2002) suggest that the prejudice and stigmatisation of the mentally ill can lead to a defensive and protective behavioural response from the community and that this in turn can lead to either withholding help or by replacing health care services 65 66 67 68 69 70 71

Rudnick et al, 2014; Johnstone, 2001. Corrigan & Watson, 2002; Penn & Martin, 1998. Wallach (2004) posited that prolonged intimate exposure on an equal basis, that is situations where there is no disparity in social power, would elicit the strongest positive change in attitude towards sufferers of mental illness. Rusch, Angermeyer & Corrigan, 2005; Holmes & River, 1998. Pearson, 2011; Diefenbach & West, 2007; Mayville & Penn, 1998; Corrigan, 1998. Corrigan & Watson, 2002. Haslam et al, 2007.

[2.110] 29

Criminal Courts and Mental Illness

with services provided by the criminal justice system. This is somewhat explained using attribution theory, which deals primarily with how the social perceiver uses information to arrive at causal explanations for events. Attribution theory examines the way that information is gathered and how it is combined to form a social judgment. 72 When considering the responses of society to mental illness, attribution theory is concerned with the causes and controllability of the illness, as well as perceptions of dangerousness that lead to inferences of responsibility. 73 If a person is perceived as being more likely to be able to control their mental illness (that is, some “blame” can be attributed to the person through drug use or drinking) this has a negative impact on understanding and help-giving behaviours within society. 74 Haslam et al (2007) have provided a theoretical framework named the “Folk Psychiatry Model”, within which responses to mental illness can be categorised. This model, based on attribution theory, is divided up into four categories of understanding: pathologising, moralising, medicalising and psychologising. 75 In order for the behaviour of an individual to be judged as deviant, either by a professional or the community, either the layperson or the expert must make a pathologising judgment. This judgment reflects the perception that some normative level for behaviour within the community has been breached. Once an individual’s behaviour has been pathologised, one method of understanding that Haslam et al (2007) posit, is to hold the mentally ill person morally responsible for their behaviour. This judgment may take various forms: • the deviant behaviour (symptoms of the mental illness) may be deemed to reflect the bad intentions or inadequate self-restraint of the individual; or

• it may be interpreted as religious sin or in secular terms, an example of the inane depravity or the criminality of the individual. 76

This cognitive relabelling of the morally corrupt deviant behaviour must also infer that this behaviour is intentional. This is the antithesis of the medicalising explanation for deviant behaviour. Here Haslam et al (2007) suggest that behaviour can be explained in terms of somatic features that are outside of the control of the person, such as genes or chemical/hormonal imbalances. 77 When behaviour is medicalised, it is explained by examining causes rather than reasons. The final way of explaining behaviour that has been pathologised is “psychological”. This method does not follow the traditional ascriptions of intentionality and blame as the other methods within the Folk Psychiatry Model. 72

73

74

75 76 77

Malle, 1999; Weiner, 1995; Fiske & Taylor, 1991.

Corrigan, Markowitz, Watson, Rowan & Kubiak, 2003; Weiner, 1995.

Corrigan et al, 2003; Corrigan & Lundin, 2001; Corrigan et al, 2001; Steins & Weiner, 1999; Menec & Perry, 1998; Rush, 1998; Graham, Weiner & Zucker, 1997; Dooley, 1995; Zucker & Weiner, 1993; Schmidt & Weiner, 1988; Weiner, Perry & Magnusson, 1988; Reisenzein, 1986; Weiner, Graham & Chandler, 1982. Haslam et al, 2007. Haslam et al, 2007. Haslam et al, 2007; Lam & Salkovskis, 2007.

30 [2.110]

Treatment of the Mentally Ill as a Social Construct

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Psychologising allows members of the community to explain the deviant behaviour in a way that focuses on mental states 78 that are not conscious or indeed rational. The causal history or the individual’s life history provide possible reasons for the deviant behaviour; for example, that deviant thought is equal to deviant behaviour in mentally ill individuals. The Folk Psychiatry Model not only maps understandings of abnormality but can also be used to identify the impact of community understandings of mental illness on the mentally ill individual. 79 This can have serious and long lasting consequences for mentally ill individuals and can lead to a lack of recognition of the moral and ethical entitlements of the mentally ill person as a participative member of the community. Johnstone (2001) suggests that the lack of recognition for the mentally ill persons’ moral entitlements perpetuates a cycle of de-humanisation and can be culturally dispossessing; 80 this will ultimately succeed in alienating the mentally disordered person. 81 Johnstone (2001) draws on the work of Meyers (1994), stating that culturally normative prejudice in mainstream society can be just as constraining and brutal as the previous perception of the institutions that the mentally ill were released from. The injustice faced by mentally ill people is not merely an abstraction; it is, as Johnstone (2001) points out, a lived reality for the sufferers of a mental disorder and their families. It follows that discrimination is the behavioural consequence of prejudice and stigma. 82 The community response to stigmatisation should not be to ignore or marginalise these persons. 83 Johnstone (2001) states that to abandon those in distress would be to act unethically and to compound their vulnerability in morally unacceptable and culpable ways. However, in order to make this point, Johnstone (2001) must assume that there is such a thing as mental illness, and that it requires treatment. If mental illness were simply a social construct, the appropriate reaction to the apparently mentally ill would be to treat them as if they were sane, and to treat discrimination against them on the basis of their imputed illness would be impermissible. Lamb and Baldrach (2001) suggest that society has limited, if any, tolerance for mentally disordered behaviour. This builds on earlier research conducted by Martin, Pescosolido and Tuch (2000) who found that perceived levels of dangerousness in the behaviour of the mentally ill link directly to notions of criminality and offending behaviours, particularly for those mentally ill persons with substance abuse disorders. 84 The criminalisation of the mentally ill, and in 78 79

80 81

82

83

84

Sharpley, 1986.

Haslam et al, 2007.

However, a prerequisite for recognition is the acknowledgment that the person is mentally ill. If the person is treated as mentally well, then there is no need for treatment. Bastian & Haslam, 2006.

Corrigan, 1998; Corrigan & Penn, 1997.

Rusch et al, 2005.

Phelan, 2002.

[2.110] 31

Criminal Courts and Mental Illness

particular those exhibiting mentally disordered behaviour, has seen many mentally ill offenders subjected to what Teplin (1990) described as inappropriate arrest and subsequent incarceration. Previously institutionalised mentally disordered individuals come to the attention of the police through what is often minor offending or “criminal behaviour”. As Lamb and Baldrach (2001) suggest, however, this disordered behaviour is often a manifestation of their mental illness, a symptom rather than the root issue. However, the difficulty comes in the recognition that the act committed by the mentally ill individual is nevertheless an inherently criminal act, which suggests that there should be one set of rules for those who are sane and offend and a different set of rules for those who are mentally ill and offend. This raises the question about the role of recovery from mental illness in this process: if the mentally ill are not capable of recovering from their illness then there is, at best, only a limited role for special rehabilitative programs and community protection becomes the paramount concern.

Recovery from mental illness [2.120] Ramon, Healy and Renouf (2007) found that the concept of recovery has become a familiar part of the language of mental health policy, services and academic literature since the early 1990s. 85 Tooth, Kalyanasundaram, Glover and Momenzadah (2003) state that recovery, as a term associated with mental health, was first incorporated in the literature in 1990 in the US and was closely followed by literature in New Zealand, the United Kingdom and Australia. 86 Anthony (1993) described recovery from mental illness as, “a way of living a satisfying, hopeful and constituting life even with the limitation caused by the illness”. 87 Recovery is both a process and an outcome. 88 Harding et al’s (1987) longitudinal American study is the leading study in this area. 89 Harding et al (1987) reported recovery levels as high as two thirds of the people that they followed over a period of more than thirty years. Warner (2004) identified two types of recovery: “complete recovery” and “social recovery”. Complete recovery was defined as a loss of psychiatric symptoms and a return to pre-illness levels of functioning, and social recovery was defined as the regaining of economic and residential independence with low social disruption. Warner (2004), in his review of all of the recovery literature over the preceding 70 years, found that complete recovery occurs in 20–25% of cases, whereas social recovery is more common, occurring in the range of 40–45% of the populations studied. Importantly, it is accepted that a person can recover from mental illness without being “cured”. An implicit part of the process of recovery from mental illness is 85

86 87

88 89

Ramon et al, 2007; Anthony, Rogers & Farkas, 2003. See Tooth et al, 2003. Anthony, 1993, p 15.

Liberman & Kopelowitz, 2005.

Harrison et al, 2001; Harding, Brooks, Ashikaga, Strauss & Breier, 1987.

32 [2.120]

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the role of the community in supporting the recovering mentally ill person. This mandates a change in the perspective of the community from mental disorder as a form of deviance; but rather to see mental illness as an illness, from which it is capable of recovering. In this regard, Ramon et al (2007) say that society has a long way to go, but the authors acknowledge the possibility and importance of recovery from mental illness as a step in the right direction, which goes some way to overcoming the stigma associated with suffering from a mental illness.

Mental illness, the criminal justice system and the impact of deinstitutionalisation [2.130] Mental illness can lead to criminal behaviour and encounters with the criminal justice system, and when it does so, people with a mental illness are particularly vulnerable to experiencing legal problems, and come up against particular barriers within the criminal justice system that can limit their ability to deal with these issues effectively or indeed at all. 90 The underlying mental illness when coupled with poor financial circumstances, a perceived lack of credibility and cognitive and communication impairment pose major challenges for people with a mental illness seeking to participate in legal processes. 91

Transinstitutionalisation [2.140] A survey conducted by the Victorian Department of Justice, in 2003, revealed higher rates of mental illness and disability among the prison populations in Victoria than in the general community. 92 This is supported by the 2012 report published by the Australian Institute of Health and Welfare, on the health of Australian prisoners, which found that a high number of prisoners suffer from chronic mental health issues; over 38% of prisoners have been diagnosed with a mental illness. 93 Individuals with a mental illness and/or intellectual disability are overrepresented at all stages within the criminal justice system, 94 not just in prisons. A number of studies 95 have been conducted on the increase in the number of mentally ill individuals entering into the prison system during and after the process of deinstitutionalisation. A recent study, carried out by Wilson et al (2015) supports the view in the above papers. 96 The progression in the treatment of the mentally ill means that over time the mentally ill have been moved from jails to asylums, from asylums to hospitals and from hospitals into a community that was ill-equipped to care for the influx 90 91 92 93 94 95 96

Krameddine & Silverstone, 2015; Castellano & Anderson, 2013; Karras et al, 2006; Wallace, Mullen & Burgess, 2004; Butler & Allnutt, 2003; Fazel & Danesh, 2002.

Fisher et al, 2011; Baillargeon & Penn, 2009. Department of Justice of Victoria, 2003. Australian Institute of Health and Welfare, 2012. Australian Institute of Criminology, 2011; Butler & Allnutt, 2003. Miller, 1992; Bonovitz & Caldwell-Bonovitz, 1981. Wilson et al (2015) also found that most prevalent mental illnesses of incarcerated individuals were schizophrenia, major affective and substance abuse disorders. [2.140] 33

Criminal Courts and Mental Illness

of mentally ill persons 97 and then back into jails. Ultimately, the mentally ill have a higher than likely chance of ending up in jail when their mental illness remains untreated. 98 Mentally ill individuals often have co-morbid diagnoses including some form of substance abuse and have difficulty accessing timely and effective treatment. 99 Furthermore, Corrado and McCuish (2015) found that mentally ill offenders who have co-morbid issues with substance abuse are more likely to engage in violent offending behaviour 100 thereby increasing the likelihood of incarceration. An additional challenge that has resulted from deinstitutionalisation was the increase in the incarceration rates of individuals diagnosed with a serious mental illness. 101 Both Linhorst (2015) and Markowitz (2006) found statistically significant correlations between deinstitutionalisation and homelessness and between homelessness and criminal activity. Mentally ill offenders engage in criminal activity for any number of reasons, including theft to support drug habits, but as the Human Rights Watch Council (2003) suggests, many are guilty of committing crimes of survival. This is supported by research conducted by Peahy (2015a) who analysed several cases involving mentally offenders from various western jurisdictions. Irrespective of the scenario, many mentally ill offenders find themselves “bounced between, courts, jails and prisons”, 102 a process that Slovenko (2003) has labelled transinstitutionalisation. In prison, the mentally ill inmate is at risk of being victimised and/or abused because he or she may be unable to fit in with the rules and structure of the prison system. 103 In the opinion of Peternelj-Taylor (2008), correctional facilities have arguably become front line mental health care providers and increasingly can be seen to represent the modern mental health care institution. 104 In order to better understand the treatment of the mentally ill within the criminal justice system, it is necessary to examine to current approach taken by criminal courts.

TRADITIONAL MECHANISMS FOR DEALING WITH MENTALLY ILL OFFENDERS IN AUSTRALIA [2.150] It is a basic principle of criminal law that a serious or indictable offence is made up of two distinct elements: a positive external action or actus reus which is the physical element of the crime coupled with a mens rea requirement, often 97 98 99 100 101 102 103 104

Prins, 2011; Ibell, 2004. Burns, Hiday & Ray, 2013; Krieg, 2001; Lamb & Shaner, 1993. Bright & Martire, 2012. See also Stuart, 2003. Kliewer, McNally & Trippany, 2009. Peahy, 2015a. James & Glaze, 2015, 2006; Jeffries, 2003. White & Whiteford, 2006; Human Rights Watch, 2003.

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referred to as the fault element of a crime, which relates to the state of mind of the accused at the time of, or before, the commission of the offence. The mens rea element is used to determine whether or not the accused person should be held to be criminally responsible for his or her actions. In general, it is an element of an offence that it be committed by a voluntary willed act by an individual who was above the age of criminal responsibility and possessed a sound mind. The difficulty that courts face when considering the liability for a mentally ill accused is their capacity to form the mens rea required to commit the fault element of a crime. The question of relevance is the degree to which mentally ill accused persons can be held to be liable for their acts. The chart below depicts the relevant elements of an offence and their interaction with a defence of mental impairment. Figure 1 Traditional mechanisms for dealing with mentally impaired offenders

IMPACT OF MENTAL IMPAIRMENT ON THE PROGRESSION OF A CASE THROUGH THE CRIMINAL JUSTICE SYSTEM [2.160] The legal doctrines that underpin the criminal law state that there is no criminal responsibility where the conduct of the accused is not voluntary – for example, the accused person could not control their behaviour as a result of [2.160] 35

Criminal Courts and Mental Illness

automatism – or where the conduct was not rational where the accused person did not understand what he or she was doing – for example, as a result of insanity or diminished responsibility. The criminal law, in Australia and internationally, has traditionally assumed that the accused person is a rational and autonomous agent. 105 However, this presumption is capable of being rebutted if the accused is found to be suffering some form of mental impairment. When considering the liability of mentally ill offenders, the question to be asked is whether or not the accused person had the requisite level of mental capacity (that is, they were not suffering from a defect of reason or a disease of the mind) to be able to form the intention to commit a crime; that is, at the time of the crime, was the accused of a sound mind? In most of the cases that involve mentally ill offenders, there is no dispute about the actus reus, instead the focus of the court is on the mens rea element. 106 Criminal responsibility in Australia requires the accused person to be of a sufficient age; 107 at common law, there is an irrefutable presumption that a child aged 10 years or younger cannot be guilty of a crime. 108 The criminal law in Victoria also mandates that the accused’s conduct was voluntary and that the accused person was sane at the time of the alleged offence. The defence of mental impairment is outlined in s 20 of the Crimes (Mental Impairment and Fitness to Be Tried) Act 1997 (Vic), which provides that a defence is established if, at the time of engaging in the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that: • the person did not know the nature and quality of the conduct; or • the person did not know that the conduct was wrong. The Crimes (Mental Impairment and Fitness to Be Tried) Act 1997 (Vic) further outlines in s 20(1)(b) that a person will not know that their conduct was wrong where they were “unable to reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong”. This corresponds to the M’Naghten test that was discussed in Chapter 1. The defence of mental impairment may be raised by either party at any time during a trial 109 and the party raising the defence must rebut the presumption that the accused person was not suffering from a mental illness. 110 The question of whether an accused person was suffering from a mental impairment at the 105

Graycar & Grabosky, 2002.

107 108

See s 344 of the Children Youth and Families Act 2005 (Vic). In Victoria, a child under 10 cannot form the requisite intent to commit a crime according to the presumption of doli incapax, which states that a child is incapable of wrongdoing. If the child is aged between 10 and 14, criminal responsibility can only be imposed if evidence establishes that the accused knew the difference between right and wrong (or between the truth and a lie). From the age of 14 and above, there is a presumption of criminal responsibility and liability, assuming that the accused understood the nature and consequence of their actions. Section 22(1) of the Crimes (Mental Impairment and Fitness to Be Tried) Act 1997 (Vic).

106

109

110

Anthony et al, 2013.

Section 21(3) of the Crimes (Mental Impairment and Fitness to Be Tried) Act 1997 (Vic).

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time of the commission of the offence is a question of fact for the jury that must be proved on the balance of probabilities. 111 The defence of mental impairment, if successfully pleaded, acts as an excuse and may limit criminal liability. There are three possible verdict outcomes: a person may be found guilty, not guilty or not guilty by reason of mental impairment. If the individual is found not guilty by reason of mental impairment, he or she may be placed on a supervision order (custodial or non-custodial) or may be unconditionally discharged in accordance with s 23 of the Crimes (Mental Impairment and Fitness to Be Tried) Act 1997 (Vic). In the Magistrates’ Court, the magistrate must discharge a person who is found not guilty by reason of mental impairment. 112

Fitness to stand trial [2.170] Where an individual decides to plead guilty, the need for a trial is abrogated and a sentencing hearing is held instead. Where a plea of not guilty is entered, however, a jury in a criminal trial (in the Supreme Court or County Court) or a magistrate (in the Magistrates’ Court) must decide the question of whether or not the person committed the crime of which they are accused. 113 In order for a person to plead not guilty and stand trial for an offence or to plead guilty to an offence, they must be fit to stand trial, that is, they must be mentally capable of entering a plea and understanding the trial process. The Victorian test for unfitness to stand trial is derived from the judgment of Justice Smith in the case of R v Presser 114 which expanded the criteria outlined in the earlier case of R v Pritchard. 115 Seven key criteria were identified to determine unfitness: 1.

ability to understand the charge;

2.

ability to plead to the charge and to exercise the right to challenge jurors;

3.

ability to understand generally the nature of the proceedings (that it is an inquiry as to whether the accused did what they are charged with);

4. 5.

ability to follow the course of the proceedings;

6.

ability to make their defence or answer to the charge; and

7.

ability to give any necessary instructions to their legal counsel.

ability to understand the substantial effect of any evidence that may be given against them;

The use of the Presser criteria was considered by the Victorian Law Reform Commission (VLRC) in their 2014 submission on the proposed changes to the Crimes (Mental Impairment and Fitness to Be Tried) Act 1997. The VLRC recommended that the criteria remain unchanged. The current criteria are codified in s 6 of the Crimes (Mental Impairment and Fitness to Be Tried) Act 1997 111

112 113 114 115

Section 21(2) of the Crimes (Mental Impairment and Fitness to Be Tried) Act 1997 (Vic).

Section 5(2) of the Crimes (Mental Impairment and Fitness to Be Tried) Act 1997 (Vic). Victorian Law Reform Commission, 2014. R v Presser [1958] VR 45.

R v Pritchard (1836) 173 ER 135.

[2.170] 37

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(Vic), the only notable addition to the common law criteria being the inclusion of s 6(2) which states that memory loss does not impact a person’s fitness to stand trial. If a court determines that an individual is unfit to stand trial but that the accused is likely to become fit within the next 12 months, then the judge must adjourn the matter 116 and may grant the accused bail, 117 remand the accused 118 or make any other order that the judge deems to be appropriate. 119 However, where the judge determines that the accused will not regain capacity within 12 months, a special hearing must be conducted 120 on the evidence available, within three months, to determine if the accused is guilty, not guilty or not guilty by reason of mental impairment. 121

Sentencing mentally ill offenders [2.180] The laws outlining the purpose of sentencing in Victoria are found in s 1 of the Sentencing Act 1991 (Vic), where it states, inter alia, that the purposes of the Act are to: (a) (b) (c)

promote consistency of approach in the sentencing of offenders; have within the one Act all general provisions dealing with the powers of courts to sentence offenders; provide fair procedures – i.

for imposing sentences; and

ii.

for dealing with offenders who breach or contravene the terms or conditions of their sentences;

Furthermore, the goals of sentencing are to prevent crime and to promote respect for the law through the mechanisms of deterrence (s 1(d)(i)), rehabilitation (s 1(d)(ii)), denunciation (s 1(d)(iii)), and to ensure that offenders are only punished to the extent justified by: • the nature and gravity of their offence; • their culpability and degree of responsibility for their offence; and • the presence of any aggravating or mitigating factors concerning the offender or the offence.

In this way, members of the judiciary are legislatively mandated to take into consideration the characteristics of the offence and offender and any factors that are relevant in the sentencing of special categories of offender (see s 1(g)). This section is supported by s 5 of the same Act, which outlines the sentencing guidelines. These guidelines outline the only purposes for which sentencing may be imposed in s 5(1)(a) – (f): 116 117

118 119 120 121

Section 12(2) of the Crimes (Mental Impairment and Fitness to Be Tried) Act 1997 (Vic). Section 12(2)(a) of the Crimes (Mental Impairment and Fitness to Be Tried) Act 1997 (Vic).

Section 12(2)(b) of the Crimes (Mental Impairment and Fitness to Be Tried) Act 1997 (Vic). Section 12(2)(d) of the Crimes (Mental Impairment and Fitness to Be Tried) Act 1997 (Vic). Section 12(5) of the Crimes (Mental Impairment and Fitness to Be Tried) Act 1997 (Vic). Section 15 of the Crimes (Mental Impairment and Fitness to Be Tried) Act 1997 (Vic).

38 [2.180]

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(a)

to punish the offender to an extent and in a manner which is just in all of the circumstances; or

(b)

to deter the offender or other persons from committing offences of the same or a similar character; or

(c)

to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or

(d)

to manifest the denunciation by the court of the type of conduct in which the offender engaged; or

(e)

to protect the community from the offender; or

(f)

a combination of two or more of those purposes.

In addition, when sentencing the offender, the court must have regard to, inter alia, the offender’s culpability and the degree of responsibility for the offence (s 5(2)(d)). The judiciary possess special powers when sentencing mentally ill offenders. These are outlined in Part 5 of the Sentencing Act 1991 (Vic) in ss 90 – 94I. This division allows the court to order assessment of the offender in cases where the offender is suffering from a mental illness or presents a risk of harm to the community or to themselves (s 91(1) and (2)). After the assessment has been undertaken, the court may, at its discretion, order a court secure treatment order under s 94(1)(a), which allows the subject of the order to be detained and treated at an inpatient mental health facility.

Sentencing methodology [2.190] Traditionally, the criminal justice system is aimed at achieving compliance with the law’s demands; 122 that is, that the offender will experience more cost than benefit from illegal activities. 123 The general coercion in relation to deterrence as a sentencing purpose stems from the Kantian ideal that is it inherently unfair to punish a person on the basis of what some other person may do. 124 It is true, however, that deterrence has never been an exclusive or dominant function of sentencing and in any case, it is not clear that sentences imposed by courts are effective at deterring offending populations. 125 This notion is supported by recidivism data, which seems to suggest that deterrence is often an ineffective strategy. 126 It is now accepted in all Australian Jurisdictions that for the purposes of sentencing, deterrence may be given less weight where an offender is diagnosed with a mental illness. 127 This is supplemented by the common law authority, 122 123 124 125 126 127

Wales, Hiday & Ray, 2010. Tyler, 2009. Hoskins, 2013. Popovic, 2006. Burns et al, 2013; Pratt, Cullen, Blevins, Daigle & Madensen, 2006. Bagaric & Edney, 2013; Traynor, 2002. [2.190] 39

Criminal Courts and Mental Illness

which states that in order to justify mitigation in the sentence imposed, the mental disorder must have a causative role in the commission of the offence. 128 Retribution is the simplest form of sentencing methodology; it is based on the premise that those who inflict harm should suffer a commensurate penalty. 129 However, this theory of justice has been widely criticised because it fails to acknowledge the underlying causes of crime. A modern adaptation of this theory is called “just deserts” sentencing. This theory asserts that the severity of the sanction should be commensurate with or proportionate to the seriousness of the wrongdoing. There are two main elements inherent in the “just deserts” sentencing; first, that the punishment fits the crime and secondly, that the punishment should be no greater than that which is warranted by the crime. The latter principle precludes preventative detention for dangerous people, but it does not preclude lighter sentences for first time offenders. The court in the case of R v Clarke 130 considered the culpability of a mentally ill woman who was convicted of damaging a flowerpot valued at one pound. The woman had a long criminal history of committing relatively minor offences and was sentenced to 18 months for the protection of society. On appeal, the case went to the House of Lords, and Lord Justice Lawton found that the sentence must be measured to fit the offence, not the offender, and quashed the conviction. This view was supported by the High Court of Australia in the case of Veen v The Queen (No 2), 131 per Mason CJ, Brennan, Dawson and Toohey JJ (Wilson and Dean JJ dissenting in separate judgments). The court found that the proportionality of the sentence was key when the offender was diagnosed with a mental illness: The principle of proportionality is now firmly established in this country. It was the unanimous view of the court in Veen (No 1) that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender. 132

The court also considered the impact of mental illness on proportionality given the often heightened risk of harm to the community, and found that it is not always inappropriate to take into account the fact that the offender is a danger to society, provided this element does not lead to a more severe penalty than would have been imposed if the offender had been “well”: It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and 128 129

130 131 132

Peahy, 2015; Peahy, 2015a.

Bagaric & Edney, 2013.

R v Clarke (1975) 61 Cr Cpp R 320. Veen v The Queen (No 2) (1988) 164 CLR 465.

Veen v The Queen (No 2) (1988) 164 CLR 465 at 458.

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an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible. 133

Since this decision, a substantial body of case law has developed across all Australian jurisdictions concerning the sentencing of mentally disordered offenders. 134 Trends in recent cases are discussed below. In the case of Man v R, 135 the Victorian Court of Criminal Appeal again held that the principle of general deterrence has little weight when an offender suffers a mental disorder. In this case, the applicant suffered from paranoid schizophrenia and his offending behaviour occurred as a result of the manifestation of the symptoms of his illness. Crockett J found that: The applicant’s motive was not greed in the usual way. It is true that he did what he did to get money and he wished to have money to serve his own personal purposes. But the motive to get the money and to get it by the means he employed, so that he might then spend it for the purposes that he had in mind, all sprang from his mental illness. He needed the money to further some bizarre ends connected with his view about the inadequacies of society which he thought required him to take steps to remedy or eradicate. The judge was required to consider whether the applicant’s being so moved to act as he did reduced the applicant’s culpability. If so, this could serve to mitigate the offence. 136

It can be seen from the above cases that the courts have been treating mental illness as a mitigating factor when sentencing. However, further common law suggests that this should be tempered and the degree of knowledge of the wrongdoing that the offender possessed should also be taken in account, as in the case of R v Wright. 137 In this case, the Crown appealed against the leniency of the sentence imposed on Wright for the commission of an armed robbery. Wright said that he heard voices and that a small bearded man told him to do things and would punish him if he failed to comply. At the time of the commission of the offence, Wright had stopped taking his medication and was using marijuana. The court found that the original judge erred in viewing the psychosis and intoxication as factors mitigating the offence, describing the offender as reckless as he contributed to the cause of his psychotic episodes: [I]f the offender acts with the knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great. 138

From this line of common law, it is clear that even where a causal link is established between the offending behaviour and the mental illness, regard must be had to the application of other principles of sentencing. The approach taken by courts is best summarised by Traynor (2002) who posited, inter alia, that at 133 134

135 136 137

138

Veen v The Queen (No 2) (1988) 164 CLR 465 at 473. Traynor, 2002.

Man v R (1990) 50 A Crim R 79. Man v R (1990) 50 A Crim R 79 at 83. R v Wright (1997) 93 A Crim R 48.

R v Wright (1997) 93 A Crim R 48 T 51 per Hunt CJ. [2.190] 41

Criminal Courts and Mental Illness

common law the sentence ought not to exceed the penalty that is commensurate with the offence, that the court must undertake an assessment of all relevant factors and that: Such an assessment will rely on a careful balancing exercise of the different objectives of sentencing and must be determined in the full context of the offence and the offender. 139

The leading case on the sentencing of mentally ill offenders in Victoria is the case of Verdins. 140 In Verdins the main considerations (Verdins principles) regarding the sentencing of mentally ill offenders were set out by the court: 1.

The mental impairment may reduce the moral culpability of the offending conduct.

2.

The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3.

Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4.

Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

5.

The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6.

Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment. 141

The court has stressed, however, that the Verdins principles are designed for use in exceptional circumstances only, as stated by Ashley and Weinberg JJA in the case of R v Vuadreu: 142 It must be emphasised that Verdins has no application in respect of a condition postulated to have existed at the time of offending unless the condition relied upon can be seen to have some realistic connection with the offending. The Verdins principles are, and should be regarded as, exceptional. 143

Where an offender is found to be suffering from a mental illness that impacted on their offending behaviour, the court can make two additional types of order: a 139

Traynor, 2002, p 6.

140 141

R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269. Judicial College of Victoria, 2012.

143

R v Vuadreu [2009] VSCA 262 at [37].

142

R v Vuadreu [2009] VSCA 262.

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court assessment order 144 or a court secure treatment order, 145 which enable the compulsory assessment and or detention of the offender for treatment. Importantly, a court secure treatment order can only be made where a term of imprisonment would have been imposed but for the mental illness and the term of the order cannot exceed the period of imprisonment that the court would have otherwise imposed.

Where to from here? [2.200] The Australian Institute of Criminology 146 suggested that traditional criminal justice responses to offending behaviour, such as the mechanisms examined above, are not effectively dealing with mentally ill offenders. In response to this, alternative criminal justice processes have attracted the attention of the Parliament as policymakers. These alternate responses stem from the problem-solving court model based on principles of therapeutic jurisprudence: the specialist mental health court and mental health diversion programs (all of which will be discussed in more detail in Chapter 3). Court-based mental health diversion programs based on the concept of therapeutic jurisprudence emphasise the law’s “healing potential to increase well-being”. 147 As such, these new and alternative methods seek to address the underlying causes of criminal behaviour exhibited by offenders with a mental illness and/or intellectual disability, by referring them to treatment services such as drug and alcohol counselling and other forms of psychological intervention. The broad aim of any such program is to divert the mentally ill individual out of the criminal justice system and into treatment.

Diversion [2.210] A further option for the judiciary when sentencing mentally ill offenders is diversion. A range of effective strategies have been created to divert those involved in the criminal justice system into mental health treatment rather than into the nation’s jails. Peternelj-Taylor (2008) suggests that these diversionary models provide a cost effective and more humane solution where mentally ill offenders are diverted into treatment programs and or specialist mental health courts. Munetz and Griffin (2006) found that these diversion programs are particularly effective for those whose crimes are non-violent in nature and those 144 145

146 147

See s 91 of the Sentencing Act 1991 (Vic). A court assessment order allows a person to be compulsorily examined by a psychiatrist before sentencing. Based on this assessment, the court decides whether to make a court secure treatment order or impose another type of sentence. See s 18E of the Sentencing Act 1991 (Vic). A court secure treatment order allows a person to be compulsorily detained and treated at a mental health service. A court imposes this type of order where it is satisfied that the offender has a mental illness and needs mental health treatment to prevent serious deterioration in his or her health or to prevent serious harm to the offender or another person (among other factors). Court-based mental health diversion programs. (2011). Retrieved on 26 July 2015 from http:// www.aic.gov.au/publications/current%20series/rip/1-10/20.html Graham, 2007, p 18.

[2.210] 43

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who did not fully understand the nature and consequences of their offending behaviour. 148 Diversion schemes of this sort are still relatively new in Australia but have been in use in the United States since the late 1980s and in United Kingdom since the early 1990s. Their use in Canada and the United States varies in efficacy depending on the availability and type of diversion program and the timing of diversion, for example, at arrest, at court or detention. These programs hold promise, not only for the treatment of mentally ill offenders, but also with the hope for rehabilitation and a reduction in recidivism. Their appeal reflects changes in societal attitudes to mental illness. As mental illness has lost some of its stigma, the community and courts alike have begun to go beyond acknowledging the existence and the influence of mental illness on offending, and are taking steps to address it. The alternatives to the traditional adversarial model when dealing with mentally ill offenders will be discussed in greater detail in the coming chapters.

148

DeMatteo, La Duke, Locklair & Heibrun, 2012; Munetz & Griffin, 2006.

44 [2.210]

CHAPTER 3 The Evolution of Therapeutic Jurisprudence, Problem-solving Courts and the Mental Health Court [3.10] [3.20] [3.40] [3.60] [3.210] [3.220] [3.230] [3.240] [3.250] [3.260] [3.270] [3.280]

Introduction ................................................................................................. 45 Therapeutic jurisprudence ........................................................................ 46 Problem-solving courts.............................................................................. 49 Mental health courts .................................................................................. 51 Competence ................................................................................................. 60 Due process rights...................................................................................... 61 Informal nature of the court..................................................................... 62 Stigmatisation and segregation of the mentally ill .............................. 62 Diversion of resources ............................................................................... 63 Lack of empirical data............................................................................... 63 Alternatives to mental health courts?..................................................... 64 Mental illness and recidivism .................................................................. 64

INTRODUCTION [3.10] While most societies treat mental illness differently to crime, mental illness may sometimes be manifested in criminal conduct. In such cases, criminal justice systems ought to make some allowance for the mental illness. 1 However, in Australia and other “common law countries”, this recognition has traditionally been limited to making allowance for mental illness in the context of determining guilt, fitness to stand trial and where relevant, the sentence that the offender should receive. 2 Courts have not been given responsibility for taking active steps to deal with the illness that underlies the offences, and have not assumed that this is their responsibility. This approach has been challenged by advocates of “therapeutic jurisprudence”, who argue that courts should play a more active role in enabling defendants to overcome the disabilities which underlie their offences. One possible solution to this problem lies in the establishment of specialist courts that utilise the problem-solving approach advocated by the therapeutic jurisprudence movement. 3 These courts are charged with enabling mentally ill defendants to secure help in relation to their illness. The phrase “therapeutic jurisprudence” 1 2

3

Wilson et al, 2015; Perlin, 2013; Goss, 2008; Munetz & Griffin, 2006. Vogel et al, 2014; Dahlin et al, 2009. Perlin, 2013; Konrad & Lau, 2010.

[3.10] 45

Criminal Courts and Mental Illness

has come to be adopted to describe a perspective which reconceptualises the role and structure of the criminal justice system, and in particular, where health and law intersect. 4 This chapter examines the intersection between mental illness and the criminal law, the therapeutic jurisprudence movements and the emergence of courts oriented towards addressing criminogenic needs rather than leaving it to the offenders themselves to solve their own problems. The intellectual impetus for the solution to the issues created by the number of mentally ill offenders involved in the criminal justice system comes from the therapeutic jurisprudence movement, and many of the advocates of the specialist mental health courts who identify with it.

THERAPEUTIC JURISPRUDENCE [3.20] Therapeutic jurisprudence is an interdisciplinary method of legal scholarship that aims to reform the law in order to positively impact the psychological well-being of the accused person. 5 In 1990, law Professor David Wexler coined the term “therapeutic jurisprudence” to acknowledge the socio-psychological consequences 6 of any legal action and that these consequences can be impacted by the interpretation of substantive legal rules and procedures. 7 It was developed in the context of mental health law but is now seen to apply to all areas of the law and across cultures. 8 Wexler (1990) asserted that the law was capable of operating as a therapeutic agent. 9 Therapeutic jurisprudence focuses on the law’s impact on the emotional life and psychological well-being of offenders within a criminal court. In essence, therapeutic jurisprudence examines the extent to which substantive rules, legal procedures, the roles of court personnel such as lawyers, judges and court administrators, combine to produce therapeutic or non-therapeutic consequences by taking a non-adversarial approach to the administration of justice. 10 The key stakeholders in court proceedings combine their efforts to create a strategy that will assist the mentally ill offender to take responsibility for making positive changes in their own lives. 11 This is especially important for members of the judiciary who should use the therapeutic jurisprudence approach to assist them to adjudicate charges in court while being mindful of the impact that the sentence may have, as either therapeutic or anti-therapeutic. 4 5 6 7 8 9 10 11

Grudzinskas et al, 2005. Winick, 2000. Freckelton, 2007; Wexler, 1990. Wexler, 1990. Wexler, 2008. Poythress et al, 2002; Wexler & Winick, 1991; Wexler, 1990. Perlin, 2013; Winick et al, 2010; Redlich et al, 2005; Wexler & Winick, 1991. Winick et al, 2010; Huddleston, Marlowe & Casebolt, 2008; Winick, 2000.

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Therapeutic jurisprudence changes the lens through which the community views the purpose of the criminal justice system. 12 It assumes that the law can be regarded as a social force that is capable of producing both positive and negative behavioural consequences for the accused. 13 According to Wexler (1990), these consequences can bring about either therapeutic or anti-therapeutic results. The therapeutic jurisprudence approach seeks to build awareness of these possible consequences and to encourage Parliament and the judiciary to see whether the law can be made or applied in a more therapeutic way. The term “therapeutic” in this context can be interchanged with “holistic”. It is important to note that a therapeutic jurisprudence model should not be applied at the expense of other important factors that are relevant to ensuring a fair trial for any accused person, such as notions of justice, due process and the upholding of fundamental legal doctrines, such as the rule of law. Wexler (1990) went on to describe therapeutic jurisprudence as a new way of thinking about old issues, which should allow for the broadening of the perspectives of key stakeholders when making, interpreting or enforcing laws. Wexler (1990) describes therapeutic jurisprudence as the study of consequences of law in action, not simply the theory of law, which would be the study of jurisprudence alone. Wexler (1990) divided the law into three categories: 1.

Legal rules: Here Wexler (1990) argued that legal rules can still be exercised fairly using a therapeutic lens, which allows key stakeholders to acknowledge a richer perspective of the law and its implications.

2.

Legal procedures such as hearings and trials: In the current study, the analysis of the Magistrates’ Court is relevant, where committal proceedings and contest mentions are undertaken instead of the trials that would occur in the higher courts. Wexler (1990) discusses the unintended anti-therapeutic consequences of legal proceedings. By way of example are family law proceedings, where the legal process of itself can create trauma for children and other vulnerable family members involved in custody disputes. In Australia, another example of this is the civil hearings that occur in order to grant a family violence intervention order, where the applicant, in most cases, is expected to confront the respondent. A consequence of this action is that it can, of itself, create anti-therapeutic effects.

3.

The role of legal “actors”: Wexler (1990) is referring to the behaviour of judges, lawyers, court staff and health service representatives acting in a legal context. It is important to recognise the impact that these stakeholders have on the psychological well-being of persons affected by various aspects of the criminal justice system. Wexler (1990) refers to the dialogue that occurs between lawyers and the judiciary and between the accused person and the judiciary as extremely influential in the process of exercising therapeutic jurisprudence fairly.

Therapeutic jurisprudence grew out of the existing mechanisms that previously operated within the criminal justice system that sought to recognise the impact of a mental impairment or disorder on the offender, usually through a finding of not guilty by reason of mental impairment or diminished responsibility. Wexler 12

13

Wexler & Winick, 1996.

Winick, 1997.

[3.20] 47

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(1992, 1990) stated, quite controversially, that the old system did not achieve its goals, in fact, that even though the system was designed to help individuals to recover or to achieve mental health, that it backfired and achieved the exact opposite of this goal, succeeding in part to re-traumatise and alienate the offender. The therapeutic jurisprudence approach is aligned closely with the development of the mental health court and is also relied heavily upon in other problem-solving court models including drug and other specialist courts. Mental health courts seek to adopt principles of therapeutic jurisprudence at the expense of formal lawyering and other stylistic aspects of a traditional adversarial forum. 14 The use of this approach is becoming more widespread and principles of therapeutic jurisprudence have also been discussed in light of family law, 15 personal injury and employment law. 16 The therapeutic jurisprudence approach argues that any anti-therapeutic consequence of a legal decision should be avoided and where possible, a holistic solution should be found that addresses the behavioural, emotional, psychological or situational circumstances of the accused person.

Criticisms of therapeutic jurisprudence [3.30] Although therapeutic jurisprudence has been largely well received, some academics and practitioners have questioned its hurried growth. 17 The rapid dissemination of therapeutic jurisprudence without the accompanying evaluative research has led to varying opinions of the effectiveness of this problem-solving model within the courts and has led some commentators to misinterpret this approach by labelling it paternalistic and coercive. 18 Winick (2002) maintains that therapeutic jurisprudence does not encourage paternalism or coercion; this would be a perversion of the aims of this approach. There are some inherent issues with this, however, as some mechanisms within the therapeutic-based court are a contradiction. For example, while advocates of the therapeutic jurisprudence approach may try to avoid paternalism and coercion, its routinisation may mean that both could come to characterise the problemsolving mental health court. While participation in the program is voluntary, access to its benefits requires the accused person to act accordingly –for example, pleading guilty – and in that sense it is coercive. Another major criticism of the list concerns the role of the judge in therapeutic legal proceedings. Duffy (2011) expresses concern over the changes to the role of the judicial officer in these proceedings, and argues that where the judge employs principles of therapeutic jurisprudence, he or she is no longer an 14 15

16 17

18

Berman & Feinblatt, 2005; Boothroyd et al, 2003; Poythress et al, 2002; Hora et al, 1999; Wren, 1998.

Anderer & Glass, 2000. King & Guthrie, 2006.

See for example, Freckelton, 2007.

Freckelton, 2007; Roberts & Indermaur, 2007.

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independent arbitrator and this level of involvement on behalf of the offender could lead to partiality and bias of the judge. 19 In a therapeutic jurisprudential forum, judges must be more than an independent arbiter of the law, they may as Duffy (2011) points out, be required to wear the hat of a “lawyer, sociologist, psychologist and even a psychoanalyst”. 20 If members of the judiciary begin to wield power that is non-judicial in nature, the very foundation of a democratic legal system is called into question – the independence and impartiality of the judiciary. Consequently, if the institutional integrity of a court is called into question, then Duffy (2011) argues that the court will be acting ultra vires and possibly unconstitutionally. Winick (2002) noted that the relationship between the judge and the mental health court participant is one of the most important aspects of therapeutic jurisprudence. During court sessions, judges should try to avoid paternalistic speech and treat all participants with dignity, respect and warmth, while allowing for the participation of the mentally ill offender in the court process wherever possible. 21 This does not mean that the judge should abandon the other aspects of their role within the criminal justice system. Indeed, judges routinely evaluate expert recommendations and decide on their implications in traditional court settings and the therapeutic court is no different in this regard.

PROBLEM-SOLVING COURTS [3.40] Problem-solving courts are not a new phenomenon and have been in place as juvenile or children’s courts since 1899. 22 However, the adult criminal justice system has been slower to adopt a problem-solving model. Problem-solving courts are an alternative to the traditional adversarial method of handling criminal cases where offenders are diverted from the criminal justice system into alternate lists. 23 The objective of the problem-solving court is to address the underlying cause of the crime-related behaviour for particular groups of individuals that can be identified by personal characteristics or offence type, such as substance abuse or mental illness. 24 Internationally, drug courts are the most common “problem-solving court” and can be found in multiple jurisdictions such as the United States of America, the United Kingdom, Canada and Australia. 25 In Australia, there are also specialist lists or courts for cases involving children (Children’s Court), Indigenous Australians (the Koori Court), domestic violence, 19 20 21 22 23 24 25

Duffy, 2011. Duffy, 2011, p 395. Frailing, 2010; Fisler, 2005. The first juvenile court was opened in Illinois in 1899. See Wright (2010). Castellano, 2011a; Davidson, 2002. Castellano, 2011; Nolan, 2009; Berman & Feinblatt, 2001. Rossman et al, 2011. [3.40] 49

Criminal Courts and Mental Illness

homelessness and families. 26 The problem-solving court model mandates that all court personnel adopt a proactive role by drawing together relevant professionals and services that can help to address a complex range of personal issues for the participant. In this way, the root cause of the offending behaviour is addressed by competent professionals. 27 The aim of these types of problem-solving courts is to be reactive to the needs of the community and offending populations. 28

Problem-solving courts and procedural justice [3.50] When considering the efficacy of problem-solving courts in general, there are important process factors and outcomes that are unable to be captured in recidivism data. A therapeutic jurisprudential model of a problem-solving court relies on procedural justice. 29 The leading researcher in this area is Tyler (2009, 2006) who has published several influential papers and a book entitled Why People Obey the Law. Tyler (2009, 2006) identifies two components of procedural justice: first, the quality of the decision-making process and secondly, the interpersonal treatment received while being involved with the criminal justice system. Kagan (2001) postulates that procedurally, the criminal law is characterised by a “distancing, opaque adversarial legalism” where lawyers predominantly control the process and where the judge occupies a largely passive role. 30 While the traditional legal system has sometimes responded to proposals by legal counsel that the accused be released on a number of seemingly “therapeutic” conditions, 31 the traditional adversarial approach has not been the most effective means to cope with the unique needs of the mentally ill accused person, with some labelling this approach as merely a revolving door for the mentally ill offender. 32 Court diversion into various treatment programs has been described as a method of administering justice compassionately for persons diagnosed with a mental illness. 33 Advocates of the mental health court argue that these courts increase the likelihood that defendants will become engaged in the mental health treatment system. 34 26 27 28 29 30 31 32 33 34

Bartels & Richards, 2012; Turner, 2011; Petrila, 2003; Freiberg, 2001. Peters, Kremling, Bekman & Caudy, 2012. Birgden, 2015. Wiener & Winick, 2010. Wales et al, 2010; Kagan, 2001; Boldt, 1998. Burns et al, 2013. Burns et al, 2013; Zafirakis, 2010; Graham, 2007. Hartford, Carey & Mendonca, 2007. Winick et al, 2010; Graham, 2007; Erikson, Campbell & Lamberti, 2006; Stefan & Winick, 2005; Poythress et al, 2002.

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MENTAL HEALTH COURTS What is a mental health court? [3.60] The criminal justice system was designed to ensure public safety, to promote justice and to punish and prevent criminal behaviour; it was not designed to provide mental health treatments and interventions. 35 Consequently, the traditional adversarial model of criminal justice often fails to identify and address the therapeutic needs of the mentally ill who have been arrested and or charged. 36 By contrast, the mental health system focuses on the treatment of mental illnesses, harm reduction and public health and well-being. 37 On the face of it, these two public services operate at odds with each other. However, despite these differences both services often have commitments to the same groups of people. 38 The disproportionate representation of individuals diagnosed with serious mental illnesses including bipolar disorder, schizophrenia and major depressive disorders in the criminal justice system is well documented. 39 The United States Council of State Governments Justice Centre (2008) has provided a succinct definition of the mental health court: A specialised court docket for certain defendants with mental illnesses that substitutes a problem-solving model for traditional criminal court processing. Participants are identified through mental health screening and assessments and voluntarily participate in a judicially supervised treatment plan developed jointly by a team of professionals. Incentives reward adherence to the treatment plan or other court conditions, non-adherence may be sanctioned, and success or graduation is defined according to [a] predetermined criteria. 40

The above American definition was the definition which was adopted by Richardson and McSherry (2010) in their leading Australian paper. As previously mentioned, mental health courts represent community-based alternatives that connote a significant departure from how the criminal justice system had previously handled offenders with specific needs 41 and ultimately seek to reduce the number of persons with mental illness in the criminal justice system. 42 These courts operate as specialist criminal courts that mandate and monitor community treatment. 43 There has undoubtedly been a swift spread of mental health courts and other diversionary programs throughout the western 35 36 37 38 39 40 41 42 43

Almquist & Dodds, 2009. Burke, Griggs, Dykens & Hodapp, 2012; Hartford, Carey & Mendonca, 2007; Luskin, 2001. Almquist & Dodds, 2009. Almquist & Dodds, 2009. James & Glaze, 2015, 2006; Redlich, Liu, Steadman, Callahan & Robbins, 2012; Steadman, Osher, Robbins, Case & Samuels, 2009; Petrila, 2003; Lamb & Weinberger, 1998. Thompson, Osher & Tomasini-Joshi, 2008, p 7. DeMatteo et al, 2012. Dirks-Linhorst & Linhorst, 2010. Redlich et al, 2012.

[3.60] 51

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world 44 including in the United States, Canada, 45 England and Wales, 46 Australia 47 and Sweden. 48 However, despite the rate that these courts have increased in global popularity, little research was undertaken on appropriate models before their implementation and consequently, a best practice model was not identified. Mental health courts vary in terms of their point of intervention (pre-trial or as a sentencing consideration), eligibility requirements (in most cases these courts are limited to people charged with summary or less serious offences) and the use of sanctions. 49 Diversion from the traditional adversarial system can occur at three points: 1.

Pre-arrest diversion: Where police use their discretion not to lay charges.

2.

Court diversion: After charges have been laid but interventions occur pre-trial.

3.

Mental Health Courts: Where diversion into treatment occurs post plea. 50

Each mental health court is unique to its jurisdiction 51 and varies according to the needs of the relevant population within that jurisdiction. 52 Despite this, there are particular hallmarks of these types of diversionary programs in that they are often managed by the creation of a specialist list that is handled by the same magistrate or judge in an effort to provide continuity and the opportunity for the judiciary to receive specialist training for this role. There are several other characteristics of a mental health court that appear to be consistent across jurisdictions including: • separate criminal lists for persons with a mental illness; • directing persons with mental illness into community treatment; • supervising participants in the community to ensure that they meet court-ordered requirements (this can include the taking of psychotropic medications); 53

• sanctioning participants for non-compliance and offering incentives for compliance; and

• voluntary participation. 54 These mental health lists/courts have in common their primary goal, which is to divert mentally ill offenders out of the criminal justice system and into 44 45

46 47

48 49 50 51

52

53 54

Gallagher, Skubby, Bonfine, Munetz & Teller, 2011.

Slinger & Roesch, 2010. James, 2010.

Richardson & McSherry, 2010.

Svennerlind et al, 2010.

Poythress et al, 2002; Goldkamp & Irons-Guynn, 2000.

Hartford et al, 2007; Steadman, Morris & Dennis, 1995. Boothroyd et al, 2003.

Steadman, Davidson & Brown, 2001; Watson, Luchins & Hanrahan, 2001.

Hughes and Peak, 2012. For more information, see a study conducted by Hughes and Peak (2012) that examines the role of psychotropic medications within mental health courts. Redlich, Steadman, Monahan, Robins & Petrila, 2006; Slate, 2003.

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therapeutic treatment. 55 In this way, the courts can provide timely access to treatment and social supports and can also seek to interrupt the cycle of repeat offending to protect the community. 56 There are a number of studies that support the notion that mental health courts are able to reduce criminal recidivism among persons with a mental illness both during and after participation in court. 57 Studies also found that court-based diversion programs can significantly reduce recidivism and substance abuse among offenders with co-morbid mental illness and substance abuse disorders. 58 Ultimately, courts work to reduce the stigma of mental illness and to enhance the autonomy and the empowerment of the accused person. 59

Who is selected to participate in the mental health court? [3.70] Some arrested or arraigned individuals are offered the option of participating in the mental health court instead of traditional court procedures and processing. 60 Admission to mental health courts is based on a complex process that varies between and within jurisdictions which involves several key stakeholders representing different expertise and interests. Such stakeholders may include: intake clinicians, magistrates or judges, prosecutors, defence lawyers, victims, clients, case managers 61 and other clinicians. 62 Wolff et al (2011) highlight the subjective selection processes of the mental health court, which can mean that the mere existence of a criminal charge and mental illness is not sufficient to guarantee admission into the specialist court. Correspondingly, the fact that a particular criminal charge and or mental illness falls outside the scope of the courts’ eligibility criteria may not preclude inclusion in the list. 63 As a result of the necessary freedom of the leading magistrate or clinician to admit participants to the list subjectively, selection bias can be expected. Luskin (2001) suggests that selection bias in case selection may have an impact on performance outcomes in the list more so than the interventions themselves. As such, selection bias limits the penetration of diversion interventions into the target population and may impact on the generalisability of study results. 64 55 56 57 58 59 60 61 62 63 64

Burns et al, 2013; Goldkamp & Irons-Guynn, 2000. Graham, 2007; Lerner-Wren, 2000. Burns et al, 2013; Ray, Dollar & Thames, 2011; Steadman, Redlich, Callahan, Robbins & Vesselinov, 2011; Hiday & Ray, 2010; Wales et al, 2010; McNeil & Binder, 2007; Moore & Hiday, 2006; Boothroyd et al, 2003; Cosden, Ellens, Schnell, Yasmeen & Wolfe, 2003; Trupin & Richards, 2003. Bright & Martire, 2012; Peters et al, 2012; Rossman et al, 2011; Marlowe, 2010; Wilson, Mitchell & MacKenzie, 2006. Phelan et al, 2014; Steadman, Redlich, Griffin, Petrila & Monahan, 2005; Lerner-Wren, 2000. Phelan et al, 2014; Wolff, Fabrikant & Belenko, 2011. For a detailed study on the role of the case manager in the mental health court, see a project conducted by Castellano (2011). Castellano, 2011; Wolff & Pogorzelski, 2005; Wolff, 2002. Wolff et al, 2011. Wolff et al, 2011. [3.70] 53

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Ten essential elements of a mental health court [3.80] In 2008, the United States of America’s Bureau of Justice Assistance published a list of ten “essential elements of a mental health court” 65 in an attempt to provide some sort of guide and consequently some uniformity to the developing mental health courts in the United States of America. This model has also been used to inform the establishment of mental health courts internationally, including in Australia 66 and Canada. 67 These elements are outlined below, and according to Ryan and Whelan (2012), provide a useful framework for any discussion on the features of mental health courts.

1. Planning and administration [3.90] When designing a mental health court, Thompson et al (2008) state that a multidisciplinary committee should first be established to facilitate its design, in line with the particular needs evident in the jurisdiction. The authors point to the need to ensure that any new mental health court is “situated at the intersection of the criminal justice, mental health and substance abuse treatment and other social services systems”. 68 This is in line with the therapeutic jurisprudence approach suggested by Wexler (1990) as it allows for the different perspectives of the key stakeholders to represent the different facets in the life of the mentally ill offender.

2. Target population [3.100] This is one of the most important elements of the mental health court, as it is always inherently necessary to limit the number of mentally ill offenders the court or list can assist. 69 Thompson et al (2008) suggest, inter alia, that the court should be reserved for accused persons whose offending behaviour occurs as a direct result of their mental illness.

3. Timely participant identification and linkage to services [3.110] In order to facilitate a timely introduction into the mental health court, Thompson et al (2008) suggest that referrals should be taken from a number of different sources, including police, judges, corrections personnel, court administrators, support workers and family members. An omission to this list that was interesting to note was a lack of recognition of the ability of the mentally ill offender to refer themselves onto the list. This sort of referral should not act as an impediment to the successful acceptance of the mentally ill individual into the mental health court. 65

66 67

68 69

Thompson et al, 2008.

Richardson & McSherry, 2010. Slinger & Roesch, 2010.

Thompson et al, 2008, p 1.

Schneider, Bloom & Heerema, 2007.

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Time is of the essence for mentally ill offenders when considering their linkages to services and their willingness to engage with the sometimes onerous conditions of the mental health court. This is an important reason to have access to well-established linkage services. Thompson et al (2008) suggest that this is best achieved with service representatives on site and available for consultation in the court building. Such services would include government and nongovernment organisations that assist with issues such as housing, employment, counselling and case management.

4. Terms of participation [3.120] The success of any mental health court is determined largely by the terms of participation and how clearly they are explained to the mentally ill offender prior to the giving of their informed consent to enter the mental health court stream. 70 Thompson et al (2008) state that it is imperative that mental health courts have “general program parameters for plea agreements, program duration, conditions and the impact of program completion”. 71 The authors also stipulate that the length of participation required in a mental health court program ought not to exceed the maximum sentence that could be imposed for that type of offence, if the offender had chosen to follow the traditional criminal justice process. 72

5. Informed choice [3.130] Participation in the mental health court must be voluntary in order for the mental health court program to succeed. 73 A mentally ill accused person should be able to opt to remit their case back to the traditional or mainstream criminal court at any time without penalty. Ryan and Whelan (2012) state that competency to consent is often a contentious issue, but that this can be resolved by ensuring a mentally ill accused person is legally represented, 74 as will be discussed in further detail in the next section of this chapter.

6. Treatment supports and services [3.140] In order to fully realise the role and potential of the mental health court, these courts should be given access to an array of services and supports to adequately address the needs of their participants. 75 These include medications, counselling and, for the large number of participants who will have co-occurring substance abuse problems, linkages with abuse treatment centres are of the 70 71 72 73 74 75

Stefan & Winick, 2005. Thompson et al, 2008, p 4. Thompson et al, 2008. Winick, 2008. However, this is not always possible or feasible. For example, unless legal aid are aware that an offender is mentally ill, they would not be able to comply with this condition. Thompson et al, 2008.

[3.140] 55

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utmost importance. 76 It is the role of the providers to advise the court on the appropriate treatment plan and some factors that could assist the mentally ill offender to comply with the treatment plan, such as the creation of bail conditions to mandate attendance at treatment appointments. Erickson et al (2006) point out that service acquisition and linkage can be a large issue for the mental health court, as the scarcity of community mental health services can mean that mental health court outcomes are heavily dependent on treatment availability. 77

7. Confidentiality [3.150] Thompson et al (2008) consider that “health and legal information should be shared in a way that protects potential participants’ confidentiality rights as mental health consumers and their [legal] rights as defendants”. 78 But it is imperative that this process does not breach the rights of the mental health court participant. In order to avoid this, the sharing of information should be monitored and controlled by a senior court administrator, judge or magistrate. 79 Any over-sharing of information could damage the confidence that the mental health court participant has in the system and can ultimately undermine the progress and the engagement of the participant. 80

8. Court team [3.160] There may be jurisdictional differences in the composition of the mental health court but it is imperative that each court is comprised of a specialist court team that includes staff from both the criminal justice system and a mental health team. Thompson et al (2008) further suggest that all staff, including the judiciary, should receive special and ongoing training to facilitate the correct treatment of participants. 81 It is clear that the role of the judiciary is of the utmost importance and is central to the successful operation of the mental health court. 82 The judge or magistrate “holds a pivotal position in bringing about reduced recidivism by pursuing a procedural regimen that conveys legitimacy to participants and invites internalisation of the law’s norms”. 83 However, this is counterbalanced by the criticism that the role of a judge should be to protect the mental health court participants’ rights as opposed to their best interests. 84 76

Ryan & Whelan, 2012.

78

Thompson et al, 2008, p 7.

77

79

80 81

82

83

84

Erickson et al, 2006; Heerema, 2005.

Miller & Perelman 2009.

McSherry & Weller, 2010. Thompson et al, 2008.

Thompson et al, 2008.

Wales et al, 2010, p 265.

Stefan & Winick 2005.

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9. Monitoring and adherence to court requirements [3.170] The court plays an important role in ensuring the compliance of the participant 85 and also the compliance of the treatment providers. 86

10. Sustainability [3.180] The collection of data on the operation of the mental health court is fundamental in order to sustain the court on a long-term basis. 87 The mental health court should be a flexible and adaptive court that can mould to the needs of the individual participant in order to achieve the highest levels of engagement, compliance and success. Most specialist courts tend to satisfy some, if not most, of these ten essential elements, however, this has happened to some degree by chance as there were many courts created before this list was published. This is perhaps the best testament to the natural production of elements of commonality in the needs of the global population for courts of this type.

Criticisms of mental health courts [3.190] Although research has largely resulted in studies showing the positive effects of mental health courts, some legal commentators and academics have expressed concern over the long-term sustainability of them. 88 In the mental health court, participants are required to consent to take part in the program for an unspecified period of time that could range from six months to two years. 89 During this time, participants remain under court supervision for periods that are much longer than if their case had been heard in a traditional court 90 creating an inherent disadvantage for the mentally ill accused. Some commentators warn against an overemphasis on this aspect given that such programs are “aimed at thwarting the cycle of release and re-arrest and so, in the long run, reduce the offender’s time under the control of the criminal justice system”. 91 Other earlier commentators have even gone so far as to suggest that the benefits associated with mental health court initiatives have been achieved at the expense of efficiency and public safety. 92 One major disadvantage of the mental health court is that it is a largely reactive program. Referral and treatment is offered to mentally ill offenders after they have been arrested and charged with a crime 93 when they are often in a 85 86 87 88 89 90 91 92 93

Thompson et al, 2008. Redlich et al, 2010. Ryan & Whelan, 2012. Edens et al, 2012; McLeod, 2012, Sarteschi, Vaughn & Kim, 2011; Almquist & Dodds, 2009; Draine, Solomon & Meyerson, 1994. Almquist & Dodds, 2009. Seltzer, 2005. Slate, 2003, p 19. Draine et al, 1994. Sarteschi et al, 2011. [3.190] 57

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time of crisis. Another possible disadvantage is whether or not the participants enter the list on a truly voluntary basis; 94 this is discussed in greater detail below. Concerns have also been expressed about the fact that those associated with mental health courts tend to share a commitment to assumptions, which may lead to their acting against the wishes of the accused person. 95 Stefan and Winick (2005) suggest that the mental health court environment is “not an atmosphere that is conducive to knowing and intelligent decision-making”. 96 This is largely due to the fact that studies have found that all involved in the mental health court process perceive that participation in the mental health court is in the best interests of the mentally ill accused person. Miller and Perelman (2009) state that this viewpoint is paternalistic and can in and of itself create a coercive atmosphere. 97 Ryan and Whelan (2012) further state that it is important that therapeutic jurisprudence is not used to cloak a paternalistic interpretation of the best interests of the mentally ill accused.

Are mental health courts truly voluntary? [3.200] An important consideration in the creation of any mental health court is that participation should be seen to be voluntary. 98 This is one of the standard hallmarks of the mental health court. 99 In the case of the this type of court, any participant has a legal right to opt out of the specialist list in favour of the traditional adversarial criminal justice system at any time of their choosing. This approach was designed to formalise the voluntary status of the participants so that they can become autonomous agents in their own mental health care. Stafford and Wygant (2005) suggest criteria that could be used to determine whether or not the decision of the mentally ill accused person to participate is truly voluntary: To make a voluntary, informed decision about a mental health court, the defendant must be able to weigh the likely sentence and probationary period associated with conviction, against the scope and duration of supervised treatment required by the mental health court. The defendant also needs information about the mental health court, including the level of coercion implicit in mandated treatment, particularly psychotropic medication; pre-trial jail sanction for noncompliance; whether the mental health court participants receive services above and beyond the standard mental health care available in their communities; whether the defendant has the option to withdraw from the mental health court, have the case heard in criminal court without prejudice, and receive credit for time served; whether the condition is 94 95 96 97 98 99

Sarteschi et al, 2011. Ryan & Whelan, 2012; Stefan & Winick, 2005. Stefan & Winick, 2005, p 516. Miller & Perelman, 2009. Poythress et al, 2002. Redlich et al, 2010; Redlich, 2005.

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dismissed upon successful completion of the program; and the limitations of the rights of privacy and privilege that otherwise apply to the mental health court. 100

The level of explanation required and the need for a detailed understanding of the implications of the participant’s decision to enter into a mental health court are the primary reasons that competency to stand trial is described as a threshold issue that must be adjudicated upon prior to the admission of an individual into a mental health court. 101 Prior research about comprehension and voluntariness has produced mixed results. 102 Whether or not the decision to participate is “knowing” and “intelligent” in all of the circumstances was the subject of a leading study conducted by Redlich in 2005. Of concern is the degree to which potential mental health court participants who are asked to voluntarily partake in the court, comprehend the decision placed before them. Another common requirement of the mental health court is that accused persons plead guilty or indicate their intention to plead guilty prior to admission into the court. This acts as a condition and possible barrier to enrolment in the court. 103 Mental health court participants must also agree to attend and to engage in outpatient treatment, take prescribed medications, attend appointments and court dates and adhere to all other orders set by the court. It has been suggested that the more severely ill may not be competent to make informed decisions about their participation in the mental health court. 104 The requirements of the mental health court are onerous and non-compliance could have serious repercussions for the participant, including increased court supervision, jail time or an expulsion from the list and a return to the regular adversarial processing stream within the domestic criminal justice system. However, it should be noted that perfect performance and compliance is not expected in the mental health court 105 and that sanctions are considered in a hierarchy of ascending seriousness with dismissal from the list and jail as the last resorts. 106 The cogency of this objection depends on the nature of the sanctions for failure to comply with the demands of the program. Many programs do not punish failure to complete, except insofar as it entails processing of cases by the ordinary criminal courts. But even if there is no formal penalty for noncompletion, the person may receive no formal credit for partial completion.

100

Stafford & Wygant, 2005, p 247.

101 102 103 104

Finkle, Kurth, Cadle & Mullan, 2009; Stafford & Wygant, 2005. Redlich, 2005; Stefan & Winick, 2005; Boothroyd et al, 2003; Poythress et al, 2002. Redlich et al, 2012; Redlich, 2005. James, 2006; Stafford & Wygant, 2005.

106

Syme, 2008; Karras et al, 2006; Popovic, 2006; Dusmohamed & Burvill, 2003.

105

Burke et al, 2012; Hartford et al, 2007.

[3.200] 59

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COMPETENCE [3.210] Competency is one of the central questions when considering the voluntary nature of the mental health court. 107 The competence or lack of competence of the mentally ill mental health court participant has been a source of constant criticism since the operation of mental health courts began. However, according to Schneider et al (2007) competence is a matter that is “rarely addressed unless the mentally ill offender is refusing treatment”. 108 When mentally ill offenders come into the mental health court for listing they are often in a time of crisis in their lives, the offenders are likely to be under considerable stress and the situation may have exacerbated his or her mental illness symptoms. 109 The capacity of mental health court participants to make informed decisions can be impacted by a number of both internal and extrinsic factors. Internal factors include the characteristics of the participant themselves, their age, gender, ethnicity, the existence of an intellectual disability, as well as the type and severity of their mental illness. 110 External factors include the degree to which the legal representative of the mental health court participant or judge or magistrate explains the process. Indeed, the criminal justice process itself can act as a barrier to informed and full comprehension; most mental health court participants are under considerable stress, having been recently arrested, placed on bail or remanded in custody, and are likely to be non-medicated. 111 At the same time, there is limited information on whether, at the time of making the decision, the participant was “stable” or competent to make it. 112 If initial comprehension is predictive of successful completion of the mental health court program then Redlich (2005) argues that mental health courts would be better able to reach the goal of improving the lives of the mentally ill offender. It is a fundamental element of a criminal justice system within a democratic country that the accused person has a right to fair trial; furthermore, the accused person must be fit to stand trial, or to plead to the charge. The literature suggests that this is a dangerous issue that some courts are ignoring as it raises too many procedural issues. For example, in the literature on US courts, it has been found that some mentally ill participants who enter mental health courts do not appear to be competent to plead guilty. Redlich et al (2010) found, for example, that 27% of clients from the Brooklyn Mental Health Court demonstrated clinically significant impairment of understanding. A further issue of concern is that if an accused is referred for a competence evaluation, that offender may not receive the benefits of the diversion scheme. 113 107 108 109 110 111 112 113

Winick, 1991. Schneider et al, 2007, p 95. Seltzer, 2005. Redlich, 2005. Schneider et al, 2007. Redlich 2005, p 609. Ryan & Whelan, 2012.

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There are some mental health court models that have avoided this issue altogether. For example in Canada the primary objective of the court is to determine a person’s fitness to stand trial, though at this juncture participation is not voluntary. 114 Supporters of mental health courts have passionately denied accusations of coercion, stating that “facing hard choices … does not amount to coercion in a legal sense”. 115 This issue has been assessed in several studies, which have found that, subjectively, participants do not feel coerced into mental health courts. 116 In a study conducted by O’Keefe (2006) on the Brooklyn Mental Health Court, it was reported that “participants were not concerned with coercion and were often confused as to why the questions were being asked”. 117 Similarly, Broward County Mental Health Court clients did not find their experience in the court to be coercive. 118 Ryan and Whelan (2012) provide a circumspect response to the small amount of studies of this nature, by saying that while these indications are positive, increased efforts should be made to ensure that as little coercion as possible exists. Stafford and Wygant (2005) have recommended that issues of competence be considered in the design of mental health courts, to ensure that accused persons who are too unwell for participation are also diverted away from the criminal justice system until their capacity resumes.

DUE PROCESS RIGHTS [3.220] Some critics have argued that the decision of an individual to participate in the specialised mental health court can result in a waiver of important due process rights that are inherent in the traditional courts within the criminal justice system. 119 One of the most significant waivers is that of the “right to litigate” and to avoid criminal conviction, due to the requirement of many mental health courts to enter a plea of guilty prior to enrolment. 120 Schneider et al (2007) argue that the relinquishing of this right demarcates the processing of the mentally ill accused from the “normal accused” and this is unfairly compounding the stigma associated with being mentally ill. 121 However, it is suggested that this argument is naïve. 122 Even in cases where the accused is not mentally ill, not guilty pleas are exceptional, partly because the accused persons 114 115 116 117 118 119 120 121 122

Slinger & Roesch, 2010; Heerema, 2005. Stefan & Winick 2005, p 516. O’Keefe, 2006, Poythress et al, 2002. O’Keefe, 2006, p 39. Poythress et al, 2002. Ryan & Whelan, 2012; Schneider et al, 2007; O’Keefe, 2006. See, for example, mental health courts in Australia, the United States of America and the United Kingdom discussed in greater detail in Chapters 4 and 5. Schneider et al, 2007. Slobogin, 2015. [3.220] 61

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are in fact guilty and partly because of plea bargaining. 123 In any case, it is not necessary to rely on a defence of mental impairment if the crime was never committed in the first place.

INFORMAL NATURE OF THE COURT [3.230] O’Keefe (2006) found that mentally ill offenders preferred the “less adversarial” nature of the mental health court, as evidenced by the “high levels of satisfaction” with the procedural justice aspect of the Brooklyn Mental Health Court. 124 However, the informal nature of this type of court can lead to a lack of procedural safeguards for the defendant when compared to the processing of offenders within the traditional criminal justice system. 125 However, Ryan and Whelan (2012) point out that the role of the judge is important in ensuring that principles of therapeutic jurisprudence are applied without limiting the due process rights of the mentally ill accused.

STIGMATISATION AND SEGREGATION OF THE MENTALLY ILL [3.240] The mentally ill are over-criminalised. 126 Often, this has been fuelled by sensationalist media reporting, where individuals diagnosed with a mental illness are portrayed as unpredictable, dangerous and violent. 127 While mental health courts seek to address this issue by providing mental health treatment to offenders with mental disorders, it is the reality that the majority of these offenders are not violent and do not present a significant risk to society. 128 Stefan and Winick (2005) argue that mental health courts are a form of segregation, created on the basis of what those “in power” wanted and not as a result of a demand from the group of defendants which it is intended to serve. 129 Other critics have argued that the specialised mental health courts exacerbate the stigma associated with being mentally ill, in that the processing of cases involving the mentally ill in a separate court actually stigmatises this group of people and implies that they are different from other offenders. 130 Indeed, in England it has been recommended that should the mental health court pilot project be extended, the name “mental health court” should be dropped as it carries the potential for stigmatisation. 131 In the Victorian ARC List, the term 123 124 125 126 127 128 129 130 131

Slobogin, 2015. O’Keefe 2006, p 39. Miller & Perelman, 2009. See, for example, Schneider et al, 2007; Chapter 2 of this book. Ryan & Whelan, 2012. Stuart, 2003. It is not possible to argue that mentally ill offenders pose no risk to society by virtue of their offending behaviour. Stefan & Winick 2005. Wolff 2002. Pakes, Winstone, Haskins & Guest, 2010; Winstone & Pakes, 2010.

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“mental health court” was removed all together due the possible stigma associated with the use of that particular phrase. Counter-arguments to these criticisms include the fact that participation in the court is voluntary and, in addition, the mental health court is a vast improvement in the treatment of mentally ill offenders. 132 Schneider et al (2007) argue that given the “procedural, evidentiary, legal and logistical peculiarities” of cases involving mentally ill offenders, cases are better dealt with by a court with specialist knowledge and sitting in a specialty jurisdiction. 133

DIVERSION OF RESOURCES [3.250] Steadman et al (2001) identified the failure of the civil mental health services as one of the root causes of the criminalisation of the mentally ill. Other commentators point to the deinstitutionalisation and transinstitutionalisation movements as the primary reasons for the criminalisation of the mentally ill within society. 134 Haimowitz (2002) posits that mental health courts represent a “disturbing” form of rationing whereby they are simply moving a particular group of people to the front of the queue, potentially ahead of more deserving or more urgent needs. This creates an even more disturbing paradigm, where the mentally ill need to commit offences in order to gain access to the required treatment. 135 Seltzer (2005) quite rightly points out that the criminal justice system is not the appropriate door through which to access mental health services. 136 Ryan and Whelan (2012) suggest that before considering the establishment of a mental health court, jurisdictions should ensure that adequate and sufficient services are in place in order to avoid unintended consequences.

LACK OF EMPIRICAL DATA [3.260] Mental health courts are a relatively new phenomenon and there is a lack of concrete evidence to support the claim that they are effective in meeting their aims. 137 Schneider (2010) states that the mental health court model was embraced “with absolutely nothing other than intuition to suggest that they were of any use whatsoever”. 138 Most studies have been site-specific and focussed on individual mental health courts rather than any general assessment of all courts. According to Schneider et al (2007) multi-court or multi132 133 134 135 136 137 138

Ryan & Whelan, 2012. Schneider et al, 2007, p 14. See Chapter 2; Hamden et al, 2011; Sheth, 2009; Fakhoury & Priebe, 2007. Stefan & Winick, 2005. Seltzer 2005. Ryan & Whelan, 2012. Schneider, 2010, p 201. [3.260] 63

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jurisdictional studies are scarce 139 largely due to the lack of appropriate resources and the differences in each court model. Furthermore, some literature has indicated that any positive results found by studies of the efficacy of mental health courts may be skewed by the fact that courts “engage in what is referred to in the insurance literature as ‘preferred selection’ or ‘cream skimming’”; 140 that is, they select the participants who are most likely to succeed in the court, for example by selecting those who have committed minor offences and are open to treatment rather than those charged with serious indictable offences who are resistant to treatment. 141 However, Ryan and Whelan (2012) point out that the fact that more evidence needs to be gathered is an argument for additional research rather than a reason to discontinue the mental health court initiatives.

ALTERNATIVES TO MENTAL HEALTH COURTS? [3.270] An important aspect of the mental health court is the structuring of the relationship between criminal courts and the mental health system. Grudzinskas et al (2005) suggest two alternatives to the specialty mental health court model. To some degree, all courts operate as quasi-mental health courts as judges and magistrates must make determinations of legal capacity and other mental health related issues. The first suggestion is to continue to train the judiciary on the impact of mental illness on offending behaviour. Grudzinskas et al (2005) argue that this will not only save resources but also will allow the catching of more mentally ill offenders than a list with narrow selection criteria. 142 This, the authors argue, will serve to free the judiciary from taking on a “social worker” type role. The second alternative takes advantage of previously identified linkages between the courts and other service providers and enhances these relationships. However, this approach is not truly an alternative to mental health courts; it is in fact, an essential element of the mental health court system.

MENTAL ILLNESS AND RECIDIVISM [3.280] Recidivism is a term that is used frequently within the criminal justice system to refer to repetitious criminal activity. This term can be used interchangeably with re-offending and repeat offending. 143 Recidivism can be measured through self-report and data obtained from the police, the courts and corrections. 144 139 140 141 142 143 144

However, see a multi-court study conducted by Sarteschi et al (2011). Wolff, 2002, p 431. However, see the research conducted by Burns et al (2013) who studied the Mental Health Court of Northern Georgia. This is the approach adopted in New South Wales where there is no Mental Health List within the Local Court. See Chapter 5. Burns et al, 2013; Payne, 2007; Maltz, 1984. Payne, 2007.

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Studies on the effectiveness of these courts in reducing criminal recidivism are few, though the number of studies is growing. 145 These studies consistently suggest that mental health courts can be successful in reducing re-offending for defendants. 146 Burns et al (2013) found that arrest, time to re-arrest and jail time were the most common outcome indicators employed. However, some studies evaluated severity of re-offending, 147 and one has looked at cost-effectiveness. 148 Of studies undertaken on recidivism, all but one 149 chose to focus their research on the efficacy of a single court. When considering Australian literature on the link between mental illness, mental health courts and recidivism, Payne (2007, 2006), in leading research, conducted a survey of all of the Australian studies on recidivism among offenders prior to 2007 and found: two in three prisoners in our country’s jails have been incarcerated previously; one in four prisoners will be convicted again within three months of being released from prison; between 35% and 41% of prisoners will be reimprisoned within two years of being released; and, importantly, recidivism rates in Australia appear to be relatively stable over time. 150 Over half of the adults who have been arrested by police in Australia will be re-arrested at least once within the next ten-year period; however, the probability of re-arrest is highest within the first two years post-release. 151 Over two thirds of the adult offenders who appear in Magistrates’ Courts will have at least one prior conviction and one in five will have already served a prison sentence. 152 When considering offender populations and the link between age and recidivism, as will be done in the current study, Hirschi and Gottfredson (1983) found that the highest chance of re-offending occurs in the age group between seventeen and twenty-one and that this probability decreases as the offender’s age increases. 153 This is supported by more recent studies conducted by Baksheev, Ogloff and Thomas (2010) and Weatherburn, Lind and Hua (2003).

145 146

147 148 149 150 151 152 153

Burns et al, 2013. Hiday, Wales & Ray, 2013; Burns et al, 2013; Steadman et al, 2011; Dirks-Linhorst & Linhorst, 2010; Frailing, 2010; Hiday & Ray, 2010; McNeil & Binder, 2010; Palermo, 2010; McNeil & Binder, 2007; Ridgely et al, 2007; Moore & Hiday, 2006; Christy, Poythress, Boothroyd, Petrila, & Mehra, 2005; Cosden, Ellens, Schnell & Yamini-Diouf, 2005; Henrickx, Swart, Ama, Dolezal, & King, 2005; Hiday, Moore, Lamoureaux & deMagistris, 2005; Cosden et al, 2003; Trupin & Richards, 2003; Harris & Koepsell, 1996. Dirks-Linhorst & Linhorst, 2010; McNeil & Binder, 2007; Moore & Hiday, 2006. Ridgely et al, 2007. Steadman et al, 2011. Payne, 2007. Payne, 2007. Lesser, 2011; Payne, 2007. Hindelang, Hirschi & Weis, 1979. [3.280] 65

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Several studies have analysed the link between gender and re-offending. In a study conducted by Ross and Guarnieri (1996) and another study conducted by Weatherburn et al (2003), it was found that females are less likely to re-offend. Furthermore, in a 2010 study conducted by Baksheev et al (2010), it was found that 75% of offenders in police detention met the criteria for a mental disorder. The mere presence of a mental illness among offenders has been shown to increase the risk of criminal recidivism. 154 Lyons, Folkemer and Hammond (2007) reported that more than half of all prison inmates in the United States suffer from a mental health issue. 155 An offender’s past criminal history is also of paramount importance when considering recidivism rates. 156 The younger the offender is when they commit their first crime, the more likely they are to become recidivist offenders. 157 There are other factors that are extremely important when considering the likelihood of recidivist offending; these factors include, age, 158 gender, 159 unemployment, 160 difficult family circumstances, 161 aboriginality, 162 substance abuse 163 and a history of mental health problems. 164 It is clear from the literature that mental illness is a factor that contributes to re-offending and to higher recidivism rates within criminal justice systems. 165 Vogel et al (2014) report that there are currently more people with a mental illness behind bars internationally than there are in psychiatric inpatient facilities. However, in Australia, relatively few studies have been conducted on the impact of mental illness on recidivism prior to 1996. 166 In Australia, Payne (2007) reports that only approximately 15% of studies conducted on recidivism have studied the link between recidivism and mental illness. 167 He reports that there is a dearth of research conducted on the link between the mentally ill and offending behaviours and has suggested that this ought to be made an area of national priority in recidivism research. In 2009, the Australian Government, in its mental health policy, specifically targeted prisoners’ vulnerability to poor mental health for intensive intervention. However, in line with research conducted by Forsythe and Gaffney (2012), it is important to note that convicted 154 155 156 157 158 159 160 161 162 163 164 165 166 167

Lim & Day, 2014, 2013; Baillargeon, Binswanger, Penn, Williams & Murray, 2009. See Chapter 2 for a more detailed discussion. Bonta, Law & Hanson, 1998. Burns et al 2013; Weatherburn et al, 2003; Hirschi & Gottfredson, 1983. Broadhurst & Loh, 1995. Buckman, Livingston & Lynch, 2003. Baldry, McDonnell, Maplestone & Peeters 2006. Makkai & Veraar, 2003. Broadhurst & Loh, 1995. Makkai, Ratcliffe, Veraar & Collins, 2004. Burns et al, 2013; Baldry & Dowse, 2006; Lovell, Gagliardi & Peterson, 2002. Vogel et al, 2014; Burns et al, 2013; Chivers, 2008. Harris & Koepsell, 1996. See Lim & Day, 2013, 2014.

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offenders represent the small portion of the people who actually commit offences 168 and get caught. Therefore, the recidivism statistics for mentally ill offenders may be inaccurate, as this population is not reflected in the data.

Recidivism among mental health court participants [3.290] There has been a shift in hypotheses about the mentally ill individual and their predisposition towards recidivist behaviour. 169 A number of interventions have been developed for this population including the creation of mental health courts. 170 Several studies have been conducted on the impact of the various mental health courts on recidivism, particularly within the United States of America. However, these studies have yielded mixed results. Dirks-Linhorst and Linhorst (2010) identified studies from America that were recognised as reporting on the recidivism rates of mental health court participants, in addition to their own study, which provided an analysis of the St Louis County Municipal Mental Health Court. These were based on the mental health courts from: San Francisco; 171 South Eastern USA; 172 California; 173 Clark County in Washington; 174 Broward County, Florida; 175 and Seattle in Washington State. 176 Further studies have been conducted in Northern Georgia by Burns et al (2013), Connecticut by Kestern et al (2012), and in Washington State by Theurer and Lovell (2008) and Gagliardi, Lovell, Peterson and Jemelka (2004). Importantly, eight of the nine above mentioned studies 177 found that participation in a mental health court decreased the recidivism rates of the participants. By contrast, the studies conducted by Cosden et al (2005) and Christy et al (2005) found that the differences between the experimental and control groups were not statistically significant at the .05 level. There are a number of explanations for this including differences in sample size and the idiosyncratic features of the programs that were jurisdiction specific. Turner and Wan (1993) found that where States do not have a mental health court program available, rates of rehospitalisation after a period of incarceration also increase. 178

168

Forsythe & Gaffney, 2012.

169

Ostermann & Matejowski, 2014; Rotter & Carr, 2011; Smith-Ingley, 2010; Thompson et al, 2008.

171

McNeil & Binder, 2007.

170 172

173

174

Skeem, Manchak & Peterson, 2010. Moore & Hiday, 2006.

Cosden et al, 2005.

Henrickx et al, 2005.

175

Christy et al, 2005.

177

Burns et al, 2013; Kestern et al, 2012; Dirks-Linhorst & Linhorst, 2010; Theurer & Lovell, 2008; McNeil & Binder, 2007; Moore & Hiday, 2006; Henrickx et al, 2005; Trupin & Richards, 2003.

176 178

Trupin & Richards, 2003.

Turner & Wan, 1993.

[3.290] 67

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Methods commonly used in recidivism studies [3.300] Although the studies vary in many ways, as described above, there are some common themes with the methods chosen to evaluate the data. Sarteschi et al (2011) conducted a literature review of all of the studies conducted in the various American mental health courts. The authors conducted a systematic search of the literature available which generated 23 studies representing 129 outcomes with over 11,000 participants. Aggregate effects for recidivism revealed a mean effect size of -0.52. Mental health courts were found to have a small to medium positive effect of 0.28 on a participant’s quality of life. 179 Studies used uni- or bivariate designs that assessed the relationship between variables such as age, gender, offending history and diagnosis (predictor variables) with recidivism outcomes (outcome variable). Studies predominantly used an experimental or quasi-experimental design that compared a treatment condition with a control or comparison group. 180 Other common methods were the pre-post-test one group and the recidivism outcome measure. 181 The most common method throughout the studies that used both quantitative and qualitative data was a comparison of pre- and post-mental health court intervention offending behaviours. It is clear from the research on mental illness and recidivism that age, prior offending, offence severity and co-morbid substance abuse are the factors closely linked to the increased risk of re-offending. These studies are discussed in greater detail in Chapter 4.

179 180 181

Sarteschi et al, 2011. Sarteschi, 2009; Landenberger & Lipsey, 2005. Wilson et al, 2006; Wilson, Lipsey & Derzon, 2003.

68 [3.300]

CHAPTER 4 Global and Australian Response to the Need for Courts to Address the Needs of Mentally Ill Offenders [4.10] [4.20] [4.30] [4.70] [4.140]

Introduction ................................................................................................. 69 Heightened international concern over the rights of the mentally ill ............................................................................................................... 69 International developments in mental health courts of common law countries .......................................................................................... 70 Australian developments .......................................................................... 76 Court-based mental health lists ............................................................... 82

INTRODUCTION [4.10] Heightened global concern over the treatment of the mentally ill has been manifested in a number of developments. These include international conventions of varying degrees of generality. More importantly, they include the establishment of specialised courts designed in light of the particular problems facing mentally ill participants in the judicial system. The emergence of such courts is the subject of this chapter.

HEIGHTENED INTERNATIONAL CONCERN OVER THE RIGHTS OF THE MENTALLY ILL [4.20] A variety of international legal instruments govern the rights of people with a mental impairment. 1 These include the International Covenant on Civil and Political Rights 2 which does not address the particular needs of the mentally ill, but which nonetheless protects rights which are of considerable importance to them. Over the past two decades, this covenant has been supplemented by more specific instruments designed to protect the interests of people with disabilities. These include the following instruments:

1

2

Kaczorowska, 2010.

International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976). [4.20] 69

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• Convention on the Rights of Persons with Disabilities 3 which promotes the equality of people with a disability. The convention sought to protect and uphold the civil, cultural, economic, political, social and human rights of people with a disability. 4 This includes, inter alia, equality before the law without discrimination and equal recognition of legal capacity. 5

• Principles for the protection of persons with mental illness and the improvement of mental health care 6 contains principles aimed at ensuring that “a mentally ill person is to have all the rights of any other person, and is to be free from discrimination”. 7

• Declaration on the Rights of Disabled Persons 8 promotes the rights of people with disabilities.

• Standard Minimum Rules for the Treatment of Prisoners 9 provide guidance as to what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions.

The significance of these treaties and conventions lies partly in the fact that they evidence changing attitudes and values, but they also have persuasive force, and constitute in part the backdrop against which revisions to the Australian mental health law have taken place. 10

INTERNATIONAL DEVELOPMENTS IN MENTAL HEALTH COURTS OF COMMON LAW COUNTRIES [4.30] One manifestation of such changes has been the development of courts oriented towards accommodating the particular needs of the mentally ill. Interest in such courts developed during the 1980s, and the early 1990s saw the establishment of the first “problem-solving” courts devoted to the specific needs of the mentally ill. The development of mental health courts sits alongside the development of other specialist “problem-solving” courts such as drug courts. Nomenclature can be confusing. Some courts that are called mental health courts are not problem-solving courts, and the entities charged with a problem-solving approach to the offences of the mentally ill go under a variety of names, some of which have been chosen to de-emphasise their concern with 3 4 5 6 7 8 9 10

Convention of the Rights of Persons with Disabilities, opened for signature 30 March 2007, GA RES 61/106, UN GAOR, 61st sess, UN Doc A/61/49 (entered into force 3 May 2008). Australian Government Attorney-General’s Department, 2008. This includes the right to be free from discrimination on the basis of disability, but also on any other basis such as race, colour, gender, language, religion, political or other opinion, national or social origin, property, birth or other status.

Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, GA Res 119, UN GAOR, 46th sess, A/RES/46/119, 75th plen mtg (17 December 1991). National Inquiry Concerning the Human Rights of People with a Mental Illness, Human Rights and Mental Illness: Report of the National Inquiry into Human Rights of People with Mental Illness/Human Rights and Equal Opportunity Commission (1993) 21. Declaration on the Rights of Disabled Persons, GA RES 3447 (XXX), UN Doc A/10034 (1975). Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Geneva (1955). For example, see below [4.70] and [4.80].

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the particular problems facing the mentally ill. For the purpose of this chapter, the term “mental health court” will be used generically to include courts and sections of courts charged with taking a problem-solving approach to mentally ill offenders. Bodies which are officially called mental health courts are sometimes indistinguishable from traditional generalist courts, except insofar as they specialise in cases involving questions as to, or arising from, the mental illness of a defendant. Queensland’s Mental Health Court is one such court, but it is not a mental health court for the purposes of this book. To avoid confusion, it will be indicated in the text when a body labelled a “mental health court” is not to be treated as such a court for the purposes of this book. Figure 2 Timeline depicting the development of prominent mental health courts nationally and internationally

United States of America [4.40] The first reported mental health court to operate in the United States of America was launched in 1997 in Broward County, Florida. As of May 2015, there are more than 300 mental health courts in operation in the United States of America alone 11 compared with only two in 1997. 12 The Broward County Mental Health Court 13 was instituted in response to a series of suicides of people with mental illness in the county jail. The Broward County Mental Health Court was the pioneer mental health court in America and shortly after the opening of this court, three other mental health courts were opened, in Anchorage, Alaska in 1998, San Bernardino, California in 1999 and in King County, Washington State in 1999. 14 Mental health courts in America were inspired by the more general movement to develop problem-solving specialist courts, for example, drug courts, domestic violence courts and community courts. The overarching motivation behind the 11 12

13

14

Mental Health Courts. (2015). Retrieved on 26 July 2015 from http://www.csgjusticecenter.org/ mental-health-court-project. Lim & Day, 2013; Almquist & Dodds, 2009; Erikson et al, 2006; Stefan & Winick, 2005. Redlich, 2005. Overseen by Judge Ginger Lerner-Wren.

King County District Mental Health (2000) Retrieved on 26 July 2015 from https://www.ncjrs.gov/ html/bja/mentalhealth/contents.html. [4.40] 71

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development of these specialist problem-solving courts was the frustration at the ineffectiveness of the standard court system to effectively rehabilitate offenders, coupled with the belief that this could be achieved by programs of the kind advocated by the therapeutic justice movement. Since 2000, the number of mental health courts has expanded rapidly. There are mental health courts in thirty-one of the fifty American States and dozens more are being planned. 15 The United States was the first international jurisdiction to take the mental health court initiative one step further, by creating the first juvenile mental health court, which was opened in February 2001, in Santa Clara, California. By 2009, five other Californian counties had developed operational juvenile mental health courts: Ventura, Los Angeles, Alameda, Fresno and Monterey. Since then, fifteen other US states have introduced juvenile mental health courts, 16 for a total of forty-one juvenile mental health courts throughout America. 17 Although the consideration of mentally ill young offenders is beyond the scope of this book, the introduction of mental health courts for young offenders would be an interesting innovation for the Australian jurisdiction to consider in a future project to identify the possible need for similar courts in Australia. These courts seek to increase the likelihood of rehabilitation by utilising multidisciplinary teams. Even while mentally ill offenders charged with serious or violent felonies (indictable offences) are not formally excluded from the program, these felonies are not routinely accepted. 18 Often courts accept only misdemeanour (summary offences) cases involving non-violent crimes such as drug violations, shoplifting, trespassing and disorderly conduct, which account for almost half of the arrests of mentally ill people throughout America. If a person’s mental health problems are determined by the judge to be an operating cause of the offending behaviour, then that individual is likely to be granted acceptance into the system. Recidivism levels in American Mental Health Courts were studied in 2004 by Portland State University researcher Heidi Henrickx in the Clark County Mental Health Court. Offenders were found to re-offend 4.1 times less and probation violations were reduced by 62%, when compared with offenders who were processed in the mainstream court system. In addition to recidivism reduction, mental health courts in America cost on average $15,000 less per offender per 15 16 17

18

National Centre for State Courts (2015). Retrieved on 26 July 2015 from http://www.ncsc.org/Servicesand-Experts/Areas-of-expertise/Problem-solving-courts/Mental-Health-Court-PerformanceMeasures.aspx. Dannerbeck-Janku & Yan, 2009. Callahan, Cocozza, Steadman & Tillman, 2012.

Juvenile Justice (2015). Retrieved on 26 July 2015 from http://www.ncsc.org/Topics/Children-Familiesand-Elders/Juvenile-Justice-and-Delinquency/Resource-Guide.aspx.

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year 19 when compared to the cost of imprisonment. 20 The statistics from this this study were confirmed by Sarteschi et al (2011) who conducted a review of all other literature.

Canada [4.50] The first mental health court in Canada was created in Toronto, Ontario, in August 1998. 21 This court was established because court personnel noticed that there had been a significant increase in the number of mentally disordered accused persons coming through the courts. It was initially proposed that a court specifically designed to accommodate mentally disordered accused be established as the volume of cases of this nature was clogging the justice system, causing unacceptable delays and inefficiencies. The plan was endorsed by the Chief Justice and the first Canadian “Mental Health Court” opened in May 1998. 22 Since the Ontario Court opened in 1998, around 15 other mental health courts have opened, notably, in Saint John, New Brunswick in 2000, Ottawa in 2006 and there are also mental health courts operating in Kitchener, Sudbury, Winnipeg and Halifax. 23 However, the original Court in Ontario remains the only mental health court that is operational on a full-time basis. 24 At the time of the mental health court’s inception, it had two primary objectives: first, to deal with pre-trial issues of fitness to stand trial quickly, and secondly, as much as possible, to slow down the “revolving door”, that is, the repeated re-offending and resultant reappearances of the mentally ill in Canadian courts. 25 Canada’s mental health courts are based on the diversionary model. The objective of the Ontario mental health court was to secure appropriate mental health services without invoking the usual criminal justice processes. In Canada, these diversion programs could occur at differing stages of interaction with the criminal justice system and can take one of three forms. First, police pre-arrest, or pre-book diversion, which allows police to use their discretion in laying charges against mentally ill offenders who have committed minor or summary offences. Secondly, the court diversion programs which are post-arrest and post-charge but pre-arraignment (the Canadian equivalent to a committal proceeding) where the offender is offered a stay of charges pending 19 20 21 22 23 24 25

However, it is important to note that those who are selected for the program are charged with relatively minor offences. This means that the sentences that they would be given would rarely involve more than a few months’ imprisonment.

A New Justice System for the mentally ill (2005) Retrieved on 26 July 2015 from http://www.pbs.org/ wgbh/pages/frontline/shows/asylums/special/excerpt.html. The mental health court initiative has been noticeably slower to disseminate in this jurisdiction and as a result is not nearly as widespread throughout Canada as it is within the United States of America. Toronto Mental health Court. (2008) Retrieved on 26 July 2015 from http://www.book.mental healthcourt.ca/pages/2/Overview.htm. Slinger & Roesch, 2010. Slinger & Roesch, 2010. Slinger & Roesch, 2010; Denckla & Berman, 2001.

[4.50] 73

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their agreement to participate in treatment programs. Finally, the offender could be referred to the mental health court where, in addition to the mentally ill offender and his or her family, a dedicated team is created to support the mentally ill offender in his or her treatment and rehabilitation. Most Canadian mental health courts operate using a pre-adjudication model, and a plea of guilty is not a necessary precondition for entry to the court. At the outset, the primary focus is assessing the fitness of a person to stand trial. 26 Mental health courts in Canada, like many other mental health courts in the Western World, involve a dedicated judge, prosecutor, defence lawyer and court support worker. 27 Jurisdiction-specific characteristics of the Canadian model include the use of a collaborative team which includes a clinical specialist who recommends and makes linkages to treatment. Importantly, all identified mentally ill defendants are handled in a single court by the same judge. 28 The court gives an undertaking to ensure the availability of appropriate clinical placement prior to the judge making a ruling, and there is specialised court monitoring with possible sanctions for non-compliance. 29 Mental health court workers were employed to assist with discharges into the community and to try to ensure that when an accused leaves the court, he or she has a basic “survival kit” which could include identification, residence, community psychiatric follow-up, social assistance, clothing and medication. In this way, the Canadian mental health court is trying to equip the mentally ill offender with the strategies and resources to succeed in the community. 30 A recent review of the studies of Canadian mental health courts conducted by MacDonald, Bellot, Sylvestre, Michaud-Dumais and Pelletier (2014) found that the Canadian mental health courts were effective at reducing recidivism, but how, why and to what level remains to be seen.

United Kingdom [4.60] In 2007, the British Government commissioned an independent review to examine the extent to which mentally ill offenders could be diverted from prison to other services while recognising that there are many potential barriers to such a diversion. In 2009, Lord Bradley delivered his report, the Bradley Report, 31 that made recommendations to the government which included the organisation of effective liaison and diversion arrangements for mentally ill offenders, as well 26

Schneider, 2010.

28

Canadian Mental Health Association (2015) Retrieved on 26 July 2015 from http:// www.ontario.cmha.ca/mental-health/services-and-support/justice-services. Steadman et al, 2001.

27

29

30 31

Schneider, 2010; Slinger & Roesch, 2010.

Steadman et al, 2001.

The Bradley report (2009) advocated the position that it is important to address the underlying reasons for offending, that being the mental disorder, as opposed to treating a symptom, the offending behaviour.

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as suggesting the creation of case teams made up of different services that could support the mentally ill person and assist them to successfully complete their individualised treatment program. The Bradley Report supported a move towards a cross-governmental multi-agency approach that focused on prevention and early intervention in the offending patterns of mentally ill offenders, concluding that the “failure to adequately address the mental health needs of offenders is a fundamental cause of the chronic dysfunction of the criminal justice system”. 32 Some of the key issues highlighted by this report included the need for a positive approach to the individual needs of the offender, including an acknowledgement of their cultural heritage, gender or their specific needs. The Bradley Report (2009) championed a flexible multi-agency and multi-professional approach involving a case management team overseen by a magistrate, who arguably could also be described as a case manager and treatment enforcer. Such teams would include the defence lawyer, the prosecution representative, social workers, psychologists/psychiatrists and representative from other support services where there should be improved collaboration between services and in particular between the offender/their legal representatives and police. The aim of this collaborative approach to the treatment and rehabilitation of mentally ill offenders was not only to identify the needs of the offender but also to effectively meet those needs. As a direct result of consenting to participate in the program and volunteering to plead guilty, the mentally ill offender would receive improved access to specialised services in mental health and the court would also recognise the role of community based services that are integral to the treatment and rehabilitation of the offender. This report differs considerably from other international and national programs to support mentally ill offenders in that even the terminology used to describe the mentally ill offender is markedly different. The Bradley Report (2009) refers to mentally ill offenders interchangeably as patients, clients or offenders. However, the main difference in the approach suggested by Bradley (2009) is that these programs should operate with an onsite mental health nurse, who would be responsible for the facilitation of the various reports on the offender. In other jurisdictions, even ones that have onsite mental health nurses, the nurse does not act as the case manager. Given the specialist expertise of a mental health nurse, this seems a worthy addition to a mental health court. As a result of the early findings of the Bradley Report (2009), in July 2009 England’s first mental health courts were officially launched by the then Justice Secretary, Jack Straw. Two pilot mental health courts have been operating in two locations, the Magistrates’ Courts of Brighton and Stratford. The aim of the operation of the pilot mental health court was to ensure that a defendant’s mental health or learning disability was given appropriate multi-agency consideration before sentencing. The pilot mental health court aimed to develop 32

Bradley, 2009, p 12. [4.60] 75

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a clear model, which identified defendants with mental health issues, assessed the extent of those issues, and ensured that the defendant received the appropriate intervention(s) and to identify the actual costs that would be incurred across the criminal justice system and health services as a result of implementing the model. Ultimately, the overarching aim of this pilot program was to provide offenders with better mental health care, as well as to reduce offending by addressing the underlying mental health condition. 33

AUSTRALIAN DEVELOPMENTS [4.70] Australia has followed the growing trend of many other western countries where individuals who suffer from a mental illness comprise a disproportionate number of those who are arrested, appear before the courts and who are imprisoned. 34 Since the deinstitutionalisation movement, there has been a shift away from placing individuals diagnosed with a mental illness into psychiatric facilities; these are reserved for the severely unwell. 35 In 2006, the Australian Senate Select Committee on Mental Health delivered its final report and recommended that there should be a “significant expansion of mental health courts and diversion programs, focused on keeping people with mental illness out of prison”. 36 The first attempts to tackle the problems faced by the mentally ill in their dealings with the legal system involved the establishment of mental health tribunals in most Australian Jurisdictions. These tribunals used more flexible procedures and were less adversarial; see, for example, s 181(1)(d) of the Mental Health Act 2014 (Vic). The role of such tribunals is to deal with the detention and compulsory treatment of the mentally ill, rather than on criminal justice issues, and their role involves only a limited problem-solving element. However, these tribunals were intended to enhance the capacity of the mentally ill to participate in cases involving their fate. One of the other key developments in the Australian legal landscape has been the establishment of offender management programs, as well as sentencing guides that directly seek to address the health and mental health of the accused person. 37 These programs are based on 33 34

35 36 37

Pakes et al, 2010. Burns et al, 2013; Richardson & McSherry, 2010; Petrila & Redlich, 2008; Ogloff, Davis, Rivers & Ross, 2007; Butler & Allnut, 2003; Ogloff, 2002; Wallace et al, 1998. In 2012, the Australian Institute of Health and Welfare found that this figure has increased to over 38% (Australian Institute of Health and Welfare, 2012). Another study conducted by Butler et al (2006) suggests that the overall incidence of psychiatric illness was actually closer to 80% for prisoners, compared to 31% for the community at large. This statistic is not surprising when considering the push towards transinstitutionalisation that occurred after the deinstitutionalisation of the mentally ill. Wilson et al, 2015; Ogloff, Lemphers & Dwyer, 2004. Senate Select Committee on Mental Health, 2006, p 20. Ross & Graham, 2012.

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Wexler’s (1990) therapeutic jurisprudence model, 38 and, accordingly, the Mental Health Court Lists or programs operate as preventative, problem-solving approaches that are primarily non-adversarial in nature. 39

Mental health legislation in Australia [4.80] Mental health law is largely concerned with the relationship between the state, the community and the individual. This usually involves a balance between the recognition of human rights and some form of coercion into treatment, when an individual lacks legal capacity to be able to make their own informed choice. 40 Mental health law seeks to frame the mandate of authorities and to clarify the limits of their powers, duties and discretions. 41 A list of the relevant Mental Health Acts is presented in chronological order below. What is interesting to note is that, while some Acts have seen significant reform, the Acts of other states have not been substantially amended for long periods. However, there are reviews underway for both Queensland and the Northern Territory and recommendations about changes to the Acts include suggestions that would bring the Acts in line with the recent amendments undertaken in other States. Western Australia and Victoria enacted new Mental Health Acts in 2014 but had not substantially amended their legislation for many years, in Victoria’s case, since 1986. Table 2 Australian Mental Health Legislation Jurisdiction Queensland Northern Territory New South Wales Australian Capital Territory 38 39

40 41

Act Mental Health Act 2000 (Qld) Mental Health and related services Act 2004 (NT) Mental Health Act 2007 (NSW) Mental Health Act 2007 (Cth)

See Chapter 3 for a discussion of therapeutic jurisprudence and Chapter 6 for reference to the direct linkage of therapeutic jurisprudence and Australia’s problem-solving courts.

Freiberg, 2007. These include arrest and pre-hearing diversionary programs, restorative and therapeutic jurisprudence practices, specialised courts dealing with drugs, alcohol or mental health problems and sentences that allow for the assessment and subsequent treatment of health related problems under a court based treatment order (Ross & Graham, 2012).

Watchirs, 2005. Watchirs, 2005; Gostin & Gable, 2004. All Mental Health Acts within Australia reflect common ethical and legal principles that seek to acknowledge diversity and reflect the requirements mandated in the UN convention, Principles for the protection of persons with mental illness and for the improvement of mental health care (1991). The application of these sorts of laws nationally and internationally has not been uniform and some breaches and misuse of Mental Health Legislation has occurred. Internationally, there have been numerous reports of the misuse of Mental Health Legislation; historically in the USSR (Chodhoff, 1984); South Africa during the apartheid era (Stone, 1976; Stone, Pinderhughes, Spurlock & Weinburg, 1979); and currently in China (Keukens & VanVoren, 2007). There have been no such reports in Australia that are as serious as their international counterparts however, each jurisdiction needed to make some changes to their Mental Health Legislation after an audit conducted by Watchirs (2005) revealed some inconsistencies with the relevant UN Convention. Such inconsistencies included a breach of the right to consent and to refuse appropriate treatment. [4.80] 77

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Jurisdiction South Australia Tasmania Western Australia Victoria

Act Mental Health Act 2009 (SA) Mental Health Act 2013 (Tas) Mental Health Act 2014 (WA) Mental Health Act 2014 (Vic)

Under the Australian Constitution 1901, mental health and mental illness do not fall within the Commonwealth’s legislative powers except insofar as they are relevant to a Commonwealth head of power. One such source is the power to legislate with respect to the Territories (s 122 of the Australian Constitution 1901), but this power has been used to create territorial legislatures whose powers resemble those of the states. Mental health legislation has therefore been largely a matter for the states and territories. While uniform legislation was advocated as early as 1989 by Dibden (1989), little has been done by way of advancing this goal since that time. There are slight, but important, differences between the states. One such example is the powers granted to the adjudicating bodies, including Mental Health Tribunals. Table 3 below presents a list of classes of decision that can be made with respect to mentally ill offenders and the corresponding body that is responsible for their administration. Table 3 Division of powers between courts and tribunals with respect to the mentally ill offenders Decision Fitness to Manage Affairs 42 Civil detention / compulsory treatment Whether fit to be tried Whether not guilty by reason of insanity Whether not guilty Decision to Divert Sentence

Decision Making Body Guardianship Board / Mental Health Tribunal Mental Health Tribunal or Criminal Courts Criminal Court (including specialist lists) and Civil Court Jury in Criminal Court proceedings Jury in Criminal Court proceedings Judge or Magistrate in Court (criminal or specialist) Judge or Magistrate in Court (civil, criminal or specialist)

It can be seen that decisions can be made by a variety of bodies that include specialist courts, the civil and criminal courts, special “problem-solving” lists and tribunals, all with some degree of overlap depending on the issue that was first presented. For example, if an offender was placed on an involuntary treatment order by the mental health tribunal and then offended, they would be transferred into the criminal courts and then (if approved) into the specialist list. 42

These are not the subject of this book, but may be handled by institutions that also deal with cases arising from the involvement of the mentally ill in the criminal justice system.

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Conversely, both criminal and civil courts can refer particular matters to the mental health tribunals when necessary. Even before the influence of therapeutic jurisprudence was reflected in institutional change, some Australian governments had made provision for relatively informal tribunals to hear a range of cases involving mental health issues. Mental Health Tribunals were described by Carney (2011) as arbiters of lawfulness and were created to be more sensitive to health considerations than their strictly judicial counterparts by virtue of their multidisciplinary team structure; this includes psychiatric and other mental health workers, as well as lawyers. 43 Table 4 (below) depicts the year that the Mental Health Review Tribunal in each jurisdiction first sat. Tasmania led the way with the creation of their Mental Health Tribunal in 1960, some 26 years before Victoria’s Mental Health Review Tribunal. South Australia does not have a Mental Health Tribunal per se: the functions of the Mental Health Tribunal are incorporated within the operations of the Guardianship Tribunal. 44 Table 4 Australian Mental Health Tribunals Jurisdiction Tasmania – Mental Health Tribunal Forensic Tribunal Victorian Mental Health Tribunal New South Wales Mental Health Review Tribunal South Australian Guardianship Board Western Australian Mental Health Review Board Northern Territory Mental Health Review Tribunal Queensland Mental Health Review Tribunal Australian Capital Territory Civil and Administrative Tribunal – Mental Health List

First Year of Operation 1960 2006 1986 1990 1995 1997 1998 2002 2009

The landscape in Australia: modern developments in mental illness recognition within the courts [4.90] Under the Australian Constitution 1901, the Commonwealth’s legislative powers do not extend to criminal law as such. Like mental health law, the criminal law is largely a matter for the states and territories. Each of the states 43

44

Beaupert & Vernon, 2011; Beaupert, 2007.

Richardson & McSherry, 2010; Richardson, 2008; Scott, 2007; Wilson, 2003. [4.90] 79

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and territories 45 has its own mental health and criminal justice system, which gives rise to slightly different approaches within Australia, depending on the jurisdiction. 46 The role of the Mental Health Review Tribunal differs from that of a problem-solving court or list. The focus of the Mental Health Review Tribunal is on adjudicating matters where individuals object to their mental health based sanctions, such as involuntary patient status and involuntary treatment orders.

Responding to the problems of mentally ill defendants [4.100] Australian states and territories have responded to this issue in a variety of ways, 47 although all jurisdictions have taken some steps to address the growing issue of mental illness within the criminal justice system. 48 While Queensland is unique in having established a specialist Mental Health Court, this body is not a “problem-solving” body, and indeed is not involved in the sentencing of the mentally ill. Four jurisdictions – South Australia, Tasmania, Victoria and Western Australia – have opted for the diversionary approach, along with the provision of specialist services. New South Wales does not operate a specialist list, but it accommodates mentally ill offenders through diversion programs and uses the services of health professionals in its mainstream court programs. The two territories, the Australian Capital Territory and the Northern Territory, do not operate specialist mental health courts or diversionary programs.

Queensland The Mental Health Court [4.110] The Queensland Mental Health Court was established in 2000 and sits in the Supreme Court. A criminal case can only be referred to the Mental Health Court if the court believes that the alleged offender is mentally ill, was mentally ill, or has an intellectual disability and, most importantly, at the time of committing the offence was deprived of the relevant capacity to form the mens rea to commit the crime (Queensland Criminal Code, s 27). Referrals may be made by the alleged offender or their legal representatives, the Director of Public Prosecutions, the Director of Mental Health (if the person is receiving treatment for a mental illness), the Attorney-General or by the District or Supreme Court.

45 46 47 48

Territories owe their powers to Commonwealth legislation made pursuant to s 122 of the Australian Constitution 1901. Their powers resemble those of the states, but they are not protected by the Constitution. The earliest Territorial codes were Ordinances made by the Commonwealth. Richardson & McSherry, 2010. All jurisdictions within Australia will be discussed in greater detail in the coming sections.

Lim & Day, 2014, 2013; Richardson & McSherry, 2010.

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The Mental Health Court is charged with determining the state of mind of an accused person who has been charged with one or more criminal offences. The court does not hear civil matters. The court’s primary role is to provide answers to the following four questions: 49 1.

Was the alleged offender of unsound mind at the time of the commission of the offence?

2.

Is the alleged offender unfit to stand trial?

3. 4.

Is the unfitness for trial permanent? If the charge is murder, was the alleged offender suffering from diminished responsibility 50 at the time of the offence?

This court also hears appeals from the Mental Health Review Tribunal and inquiries into the lawfulness of patients’ detention in authorised mental health facilities. The Mental Health Court differs significantly from its diversionary court lists, which utilise a problem-solving approach based on principles of therapeutic jurisprudence. The Queensland Mental Health Court is a specialist court but not a problem-solving court and it is not concerned with sentencing or diversion.

Special Circumstances Court [4.120] The Queensland Special Circumstances Court is a Specialist Court List that has operated out of the Magistrates Court of Brisbane since 2010. 51 The List is aimed at rehabilitating adult offenders who have committed summary offences in circumstances that are connected to homelessness or impaired capacity. 52 This List is based on the problem-solving court model and operates as a sentencing list where the impairment acts a mitigating factor.

New South Wales [4.130] New South Wales has neither a mental health court nor a specific diversionary list for offenders diagnosed with a mental illness. However, New South Wales legislation permits the judiciary to defer taking a plea or sentencing an individual to enable a person to undertake a diversionary program prior to sentence. 53 Sections 32 and 33 of the Mental Health (Forensic Provisions) Act 1990 (NSW) permit offenders with mental illness or intellectual disability who have been charged with summary offences to be diverted from the traditional 49 50 51

52 53

Mental Health Court of Queensland (2011) Retrieved on 26 July 2015 from http://www.book.courts.ql d.gov.au/__data/assets/pdf_file/0003/84558/d-fs-mhc-mental-health-court.pdf.

Diminished responsibility is not recognised as a defence Victoria. See the Magistrates Court, Practice Direction No 25 of 2010: Special Circumstances Court Diversion Program, 2010. Walsh, 2010. Impaired decision-making capacity, in this context, refers to intellectual, psychiatric, cognitive or neurological impairment, or a combination of them all, which results in a reduction of the person’s capacity for communication, social interaction or learning and a need for support. Richardson & McSherry, 2010.

[4.130] 81

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adversarial criminal justice system into community treatment. 54 The rationale for not developing specialist lists appears to be that the incorporation of diversion into the mainstream criminal justice system eliminates the need to refer to specialist lists. 55 However, Richardson and McSherry (2010) report that this power is not used uniformly by New South Wales magistrates for a number of reasons that include a perceived lack of confidence in the community treatment service system 56 and a lack of clear and adequate treatment plans. 57 However, 2004 amendments to the Mental Health (Forensic Provisions) Act 1990 (NSW), to allow magistrates to sanction mentally ill offenders for noncompliance with treatment orders increased the use of this section among magistrates and judges in New South Wales. 58 In addition to this, courts have employed mental health nurses who have been working in conjunction with court officers in New South Wales to provide timely clinical advice to the judiciary. 59

COURT-BASED MENTAL HEALTH LISTS [4.140] US-style diversion programs have been created in four Australian Jurisdictions: South Australia, Tasmania, Victoria and Western Australia. 60 Figure 3 Timeline depicting the introduction of Mental Health Court Diversion Lists in Australia

As can be seen above, South Australia was the first state to introduce a Mental Health Court diversionary list in 1999, followed by Tasmania in 2007, Victoria in 2010 and most recently, Western Australia in 2013. 54

Vanny, Levy, Greenberg & Hayes, 2008.

55 56 57 58

Vanny et al, 2008. Gotsis & Donnelly, 2008. Syme, 2008. Richardson & McSherry, 2010.

60

Richardson & McSherry, 2010.

59

Richardson & McSherry, 2010; Gotsis & Donnelly, 2008; Syme, 2008.

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South Australia Magistrates Court Diversion Program [4.150] The first US-style mental health court in Australia was the Magistrates Court Diversion Program in South Australia which has been in operation since June 1999. The court was initially named the Mental Impairment Court, but over time this name has been used less and less and both the court, which simply sits within a Magistrates Court, and the Program, are now known simply as the Magistrates Court Diversion Program. 61 The Program initially commenced as a pilot and in June 2001 the South Australian Government made a commitment to fund the program on a recurrent basis, following an independent evaluation. 62 This research and a subsequent study found that the Magistrates Court Diversion Program was having a positive impact on reducing re-offending. 63 More recently, a study conducted by Lim and Day (2014) also found that there was a reduction in the severity of any subsequent re-offending of participants who had successfully completed the Magistrates Court Diversion Program. 64 The Magistrates Court Diversion Program is best described as a pre-sentence program that seeks to initiate early intervention through referral into treatment and rehabilitation services, while the formal and traditional adversarial criminal justice system is adjourned. 65 This process enables remittal to mainstream courts for processing at any time but it also allows the matter to be finalised at any time. The Program began with a significant budget 66 and still operates with a comparatively large number of staff (when compared to other Australian Diversion Lists and court programs) who are solely responsible for the administration and functioning of it; this includes four clinical advisors (psychologists) and five clinical liaison officers. 67 This budget has decreased over time but the Program has secured continuing funding which is assessed annually in line with the approach taken in other specialist court program jurisdictions. The staff members in the Diversion Program are organised into two teams: the Clinical Advising Team and the Clinical Liaison Team. Both teams are led by a team leader who reports to the Intervention Programs Manager and has 61 62 63 64 65 66 67

Magistrates Court Diversion Program (2012) Retrieved on 26 July 2015 from http:// www.book.courts.sa.gov.au/OurCourts/MagistratesCourt/InterventionPrograms/Pages/ Magistrates-Court-Diversion-Program.aspx. Office of Crime Statistics and Research (2015) Retrieved on 26.7.15 from http:// www.book.ocsar.sa.gov.au. Skrzypiec et al, 2004; Dusmohamed & Burvill, 2003. Lim & Day, 2014. Lim & Day, 2014, 2013; Burvill, Dusmohamed, Hunter & Rostie, 2003. Graham, 2007. Legal Services Commission of South Australia (2015) Retrieved on 26 July 2015 from http:// www.book.lsc.sa.gov.au/dsh/ch04s10.php. [4.150] 83

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responsibility for the assessment and monitoring of participants under the Bail Act 1985 s 21B, the Criminal Law Consolidation Act 1935 and the Intervention Orders Act 2009. 68 The Manager, in turn, reports to the Chief Magistrate and the Director of Court Services. This elaborate reporting system means that relevant court personnel are kept up-to-date with the progress of each participant in the List.

Aims of the Program [4.160] There were three primary aims of the creation and implementation of the Magistrates’ Court Diversion Program in an attempt to shift the outcomes that mentally ill or mentally impaired offenders experience in the criminal justice system. The first aim has been to prevent further offending behaviour by providing access to early assessment and interventions that address the mental health or disability needs of accused persons and their offending behaviours. The second aim has been to provide assistance to the court in the identification and management of individuals diagnosed with a mental illness who were interacting with the criminal justice system through the courts. Thirdly, this Program created further diversionary and sentencing options within the Magistrates Court for accused persons who might otherwise plead a mental impairment defence under s 269 of the Criminal Law Consolidation Act 1935 (SA). Participation in the Magistrates Courts Diversion Program of South Australia is voluntary and there are mechanisms in place to ensure that each participant fully understands the impact of choosing to have their case heard in this court. Prior to admission to the South Australian Magistrates’ Court Diversion Program, a registered psychologist (clinical advisor) conducts an assessment and must be satisfied at this preliminary stage that the individual understands the Program and can give informed consent to participate. 69 A report is prepared for the magistrate to rely on when they make the decision whether or not to allow an individual entry into the diversion list. The prosecutor gives an indication of what penalty the Crown would be seeking should the offender not successfully complete the list. 70 Interestingly, the offender is not required to plead guilty to the alleged offences. Instead, they are required to admit to the objective elements of the offence. In order to review the progress of mentally ill offenders, the diversion court conducts bi-monthly reviews that seek to motivate the offender to continue treatment. 71 The average time that offenders participate in the court 68 69 70 71

Magistrates Court Diversion Program (2015) Retrieved on 26 July 2015 from http:// www.book.courts.sa.gov.au/OurCourts/MagistratesCourt/InterventionPrograms/Pages/ default.aspx. Richardson & McSherry, 2010. Burvill et al, 2003.

Richardson & McSherry, 2010.

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diversion program is six months 72 and, on average, two thirds of offenders left the list with a criminal conviction recorded. 73

Evaluations [4.170] Three evaluations of the Diversion Program have been conducted since its inception: a process evaluation in July 2001; 74 an outcome evaluation in July 2004; 75 and a recidivism study in 2014. 76 In short, the study conducted by Lim and Day (2014) assessed the efficacy of the Program by looking at the differences in the recidivist behaviours between those who completed the Program and those who did not. These evaluations found that the Program is having a positive impact on the engagement levels of the mentally ill offender and that it is reducing rates of re-offending for mentally ill offenders who successfully complete it. However, these evaluation studies have some limitations, the most important being the definition of what constitutes Program completion. The definition of Program completion differs according to the individual goals set by the participant. It does not simply mean Program participation for a requisite time length, and this may skew the results of program evaluations.

Tasmania [4.180] In Tasmania, Mental Health Tribunals and Mental Health Lists operate out of the Magistrates Court of Hobart. The Hobart Magistrates Court Mental Health Diversion List is extremely important for this book, as it is one of the two Australian diversionary programs that pre-date the Victorian List and it was identified as the domestic court that the Victorian ARC List was modelled.

Hobart Magistrates Court Mental Health Diversion List [4.190] In May 2007, 77 the Tasmanian Magistrates Court commenced a pilot Mental Health Diversion List. The success of this pilot in Hobart convinced the court to make the Mental Health Diversion List a permanent feature of its operations and subsequently extend the List to Launceston, Davenport and Burnie. The Mental Health Diversion List is an example of the Tasmanian court revising its processes to deliver better services to a special category of offenders, in this case by running a specific court list for the mentally ill. 78 This List, like its national and international counterparts, operates with a constant court team as 72 73 74 75 76 77

78

Richardson & McSherry, 2010. Burvill et al, 2003. Hunter & McRostie, 2001. Skrzypiec et al, 2004. Lim & Day, 2014. Mental Health and Cognitive Disability Diversion (2014) Retrieved on 26 July 2015 from http:// www.magistratescourt.tas.gov.au/divisions/criminal__and__general/mental_health_diversion/ Mental_Health_Diversion_List; Hobart Mental Health Court achieves success (2015) ) Retrieved on 26 July 2015 from https://www.prezi.com/uglegtln8eh_/mental-illness-in-prisons. Graham, 2007.

[4.190] 85

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well as a team of dedicated magistrates who hear Diversion List matters. The aim of the Mental Health Diversion List is to deliver a more therapeutic, as opposed to a purely legal, response to the offending behaviour of accused persons with mental health issues. 79 As in other jurisdictions, the rate at which the mentally ill were offending in “nuisance” type ways (such as shoplifting and disorderly conduct) had steadily increased over the last three decades. These issues would have previously been dealt with by the courts on a regular basis with little acknowledgement of the impact of mental illness on offending behaviour and as such rates of recidivism were high. 80 This List recognises the offending behaviour may be a symptom of the mental illness.

Eligibility for participation in the List [4.200] Eligibility for participation in the Mental Health Diversion List is limited to adult accused persons with impaired intellectual or mental functioning as a result of a mental illness as defined in the Mental Health Act 2013 (Tas). 81 One of main differences between this Mental Health List and the Mental Health Diversionary Program in South Australia (discussed above) is that the Tasmanian List eligibility criteria specifically exclude offenders who suffer from an intellectual disability, unless they also have a co-morbid diagnosis of a mental illness. 82 The Mental Health Diversion List is only available where the mentally ill accused person is charged with a summary offence or with an indictable offence that is capable of being tried summarily. The List excludes young offenders and offenders who have been charged with some indictable offences, including sexual offences and offences involving the infliction of actual and serious bodily harm. 83 Participation in the Tasmanian Mental Health List is voluntary and the court must be satisfied that the matter is not likely to be contested. However, there is no formal requirement that the mentally ill offender plead guilty prior to admission into the List. There are, however, a number of conditions that must be satisfied before the accused person can enter the program: 1.

an acknowledgement of guilt/admission of responsibility for the offence by the offender (this falls short of entering a guilty plea);

2.

referral for initial assessment by a forensic mental health psychiatric nurse at the court;

79

80 81

82

83

Magistrates Court of Tasmania, 2007.

Richardson & McSherry, 2010.

Newitt & Stojcevski, 2009. Defendants with existing mental health issues that would ground an insanity defence under s 16 of the Criminal Code, or an argument about fitness to plead under the Criminal Justice (Mental Impairment) Act 1999, are ineligible for referral to the Mental Health Diversion List. Richardson & McSherry, 2010. Magistrates Court of Tasmania, 2014, 2007.

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3.

development of a more detailed treatment plan for the offender involving therapy in the community; and

4.

regular supervision of the offender by the court while undertaking further assessment and treatment in the mental health sector. 84

Referral [4.210] Mentally ill individuals can refer themselves into the program or be referred into it by a number of other people, including family members, other magistrates, lawyers acting for the defendant, Tasmanian Police, the prosecution division, mental health case managers, other service providers or anyone with a genuine interest in the welfare of the person.

Assessment [4.220] In order to determine whether a person is suitable for the program, the mentally ill offender must first undergo an assessment interview with a Forensic Mental Health Court Liaison Officer. The purpose of this assessment is to create a detailed treatment plan, part of which links the offender to community support services to assist them throughout the court process. This is a similar process to that mentioned above for the South Australian Magistrates Court Diversion Program, and is designed to ensure that the court does not take on a therapeutic role for which it is not qualified.

Court diversion [4.230] Once assessed as eligible and suitable by the Forensic Mental Health Court Liaison Officer, the mentally ill accused person will appear before the magistrate presiding over the List. The magistrate will, on the basis of information provided to the court by the Forensic Mental Health Court Liaison Officer, the police and the defence lawyer, decide whether or not to accept the person into the program and tailor an order, usually a bail order that would be best suited to addressing the individual’s mental health and legal needs. Individuals found not to be suitable for the List will be referred back to the General Court Lists for processing in the traditional adversarial criminal justice system. 85 No adverse inference may be drawn by the court in the mainstream criminal justice system from the fact that an individual was denied entry into the specialist list. The Mental Health Diversion List involves extensive court supervision of the mentally ill offender and supervision will occur approximately once per month in court. This process involves a multidisciplinary team including the magistrate, the prosecutor, defence lawyers, the offender, forensic mental health officers and other treatment providers as required. This multidisciplinary strategy includes a 84 85

Magistrates Court of Tasmania, 2007.

Newitt & Stojcevski, 2009.

[4.230] 87

Criminal Courts and Mental Illness

range of activities designed to break the cycle of offending and address issues relating to offender behaviour such as health (medication), housing, and in some cases, employment. In Hobart, there are on average approximately 500 defendants who are referred by the court to Forensic Mental Health Court Liaison Officers for assessment each year. 86 It can reasonably be assumed that this figure has increased since 2010, but court data has not been released on this issue.

Evaluation of the Tasmanian List [4.240] In 2010, the Chief Magistrate of the Tasmanian Magistrates Court, Michael Hill, made a presentation on the success of the Mental Health Diversion List. This presentation provided a snapshot of the efficacy and daily operations of the List. In the years between May 2007 and December 2009, there were 154 referrals into the List. These referrals were received from lawyers (43%), Forensic Mental Health List Staff (33%), magistrates (18%), police (1%) and other sources (5%). 87 Of the 154 referrals, 126 participants were accepted and subsequently completed the Program (there were 28 individuals who did not complete the program for various reasons including ineligibility, non-compliance or withdrawal of consent to participate). Newitt and Stojcevski (2009) found that the primary diagnosis of participants in the Mental Health Diversion List was schizophrenia (44%). Other diagnoses included bipolar disorder (15%), depression (9%), post-traumatic stress disorder (8%), personality disorder (6%), psychosis (6%) and obsessive compulsive disorder (3%). In the period between May 2007 and December 2009, 110 of the active 126 cases were completed (16 cases were still active). There was an average of 2.8 appearances before finalisation with 72% of cases being resolved in 1–3 hearings and 25% being resolved in 4–5 hearings. In the first twelve months of the operation of the Mental Health Diversion List, the majority of the individuals who completed the List were sentenced with good behaviour bonds. 88 More detailed data was provided by Hill (2010), who reported that of the 110 completed participants (from the period May 2007 to December 2009) 135 sentences were recorded. These sentences included a conditional release order (55%), full dismissal of all charges (12%), in 9% of the cases no evidence was tendered and in a further 9% of the cases, a suspended sentence was awarded. 89 Evidence from the above evaluations suggests that this program has been effective at reducing recidivism rates among participants who complete the Mental Health Court Diversion Program.

86 87 88 89

Hill, 2010; Newitt & Stojcevski, 2009. Hill, 2010. Hill, 2008. Hill, 2010.

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Western Australia [4.250] The Western Australian Mental Health Court Liaison Service 90 operates throughout the State 91 and also operates in remote and regional areas via video-conference. 92 It seeks to link mental health services with the criminal justice system in a timely and efficient way. This involves having a team of mental health trained personnel on hand to conduct assessments and to provide advice to the court. This program operates in a similar way to Australia’s other diversionary programs. Offenders who are diagnosed with a mental illness will be referred into this court to be assessed by a court-based mental health team. The Western Australian Mental Health Court Liaison Service seems to have taken the best features from the Tasmanian, Victorian and South Australian Lists and has taken steps to address some of the issues identified in the running of these Lists. Similarities include the voluntary nature of the court and a dedicated court team that includes mental health workers. This List has mechanisms for referring participants either to external forensic mental health services such as hospitals or simply to their local general medical practitioner. An innovation is the liaison with relevant non-government organisations and government departments who are on site regularly. 93 In addition, most likely in response to the difficulty of existing lists to obtain services for mentally ill participants, the Western Australian Mental Health Court Liaison Service has access to a small amount of brokerage funds to ensure that urgent needs, such as crisis accommodation, can be met quickly, thereby bypassing the lengthy waiting lists faced in other Australian jurisdictions. The aim of this court is to stabilise the condition of the mentally ill offender in order to make the granting of bail more likely and, wherever possible, to assist in diverting individuals away from custody. The Victorian Assessment and Referral Court List, which followed the procedures outlines by the Tasmanian List, will be discussed in the following chapter.

90 91 92 93

A version of this service has been operating since 2001, however, the main focus of this service, which bears the same name was the use of video-conferencing. Brett, 2010. Brett & Blumberg, 2005. Government of Western Australia Mental Health Commission, 2014. [4.250] 89

CHAPTER 5 Recent Initiatives in the State of Victoria: A Case Study [5.10] [5.20] [5.90] [5.210]

Introduction ................................................................................................. 91 Victorian forensic mental health landscape: previous initiatives ...... 91 The Assessment and Referral Court List in the Magistrates’ Court of Victoria................................................................................................ 96 Statistics from the ARC List ................................................................... 106

INTRODUCTION [5.10] This chapter discusses the steps that the State of Victoria has taken to address the legal and other problems faced by mentally ill people in general and in particular by mentally ill offenders.

VICTORIAN FORENSIC MENTAL HEALTH LANDSCAPE: PREVIOUS INITIATIVES [5.20] Victoria has a number of institutions that sit alongside the traditional adversarial criminal justice system, one such organisation being the Victorian Mental Health Review Tribunal/Board. Although the functions of this tribunal do not include the sentencing of mentally ill offenders, until 1995, it was Victoria’s only stand-alone tribunal devoted to dealing with the impact of mental illness in the context of Victoria’s legal system. It is also significant in that it represents an example of a multidisciplinary tribunal. A number of more recent initiatives under the Mental Health Act 2014 (Vic) will be discussed later in this chapter.

Victorian Mental Health Review Board [5.30] The Mental Health Review Board of Victoria operates as a statutory review tribunal which conducts hearings to determine whether it is necessary for a mentally ill individual to be treated as an involuntary patient (either inpatient or outpatient) under the Mental Health Act 2014 (Vic). There has been some discussion about the use and efficacy of such tribunals with regard to the degree to which they recognise and respect the rights of the participant within the scope of their powers granted by legislation. In a study conducted by the National Rights Analysis Instrument Assessment Panel in a report to the Australian

[5.30] 91

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Health Ministers advisory group in 2000, the Panel found that the Victorian Mental Health Review Board performed “considerably better” than most other jurisdictions. 1 The Victorian Mental Health Review Board usually consists of three members, a lawyer, a psychiatrist and a community member, in accordance with s 425 of the Mental Health Act 2014 (Vic). The Act ensures that the Mental Health Review Board contains representatives from key stakeholder groups involved in the forensic psychology field. In this way the Mental Health Review Board is able to make informed decisions about the best possible action on behalf of forensic mental health participants. The main functions of the Board are to hear appeals from both involuntary inpatients and individuals who are placed on community treatment orders and wish to have their orders reviewed or discharged. In making its decisions, the Board must consider the right of the individual to receive necessary treatment, the loss of freedom that the individual experiences when they are treated involuntarily and the decision that would be in the best interests of the community: Mental Health Act 2014 (Vic), s 11. When a mentally ill individual appears before the Board, the Board will hear evidence from that person and one or more members of their treating team, and will receive submissions from any representative on behalf of the participant. The Board will consider all of the evidence, including the person’s clinical file. It will then make a decision in accordance with the criteria outlined in the Mental Health Act 2014 (Vic). However, while the Board may order that a person be discharged where the required treatment is not available, it cannot direct a mental health service to provide a person with particular treatments. It also has no power under any piece of Victorian Legislation to order changes to the treatment being provided as this would only be done by the participant’s own psychiatrist. The criteria for decision-making are contained in the Mental Health Act 2014 (Vic) and applied depending largely on the individual’s status under the Act, that is, voluntary or involuntary. Where a participant disagrees with a decision of the Mental Health Review Board, he or she can appeal to the Board or apply for a review to the Victorian Civil and Administrative Tribunal. One of the main functions of Mental Health Review Board under the Mental Health Act 2014 (Vic) is to issue, modify and monitor community treatment orders for both voluntary and involuntary patients in Victoria. Community treatment orders are discussed briefly below.

Previous forensic options: treatment orders [5.40] Treatment orders 2 are a method of involuntary treatment in Victoria for mentally ill offenders. 3 The implementation of community treatment orders has 1

2 3

Rees, 2007; Delaney, 2003.

Under previous versions of the Mental Health Act 2014 (Vic), these were known as “Community Treatment Orders”. Brophy, Reece & McDermott, 2006.

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been a hotly contested issue internationally 4 but has aroused little controversy in Victoria. 5 The significant reliance in sentencing on community treatment orders and concerns about their overuse is well documented. 6 However, studies suggest that community treatment orders succeed in reducing both vulnerability and violence and, most importantly, seek to divert individuals away from the criminal justice system. 7 The community treatment order provides a precedent in Victoria for multidisciplinary approaches. The Victorian Mental Health Review Tribunal operates on a full-time basis in Victoria and the introduction of therapeutic jurisprudence initiatives and options in other courts within the jurisdiction (as discussed later in this chapter), has done little to curb the number of participants. The Tribunal itself does not strictly employ principles of therapeutic jurisprudence but it is conducted in a relatively informal setting. 8

Victorian forensic mental health landscape: the need for change [5.50] In Victoria, the rates of recidivism for offenders diagnosed with a mental illness were high, 9 the faith of the community in the traditional mechanisms to cope with mentally ill offenders was low 10 and, without change, the system was unlikely to improve outcomes for the mentally ill. One reason for this was that deinstitutionalisation had the effect of diverting people from mental hospitals, whose purposes included the treatment of the mentally ill, into prisons that were ill-equipped. In response to concern about the plight of mentally ill defendants, in 2006, the Senate Select Committee on Mental Health recommended, inter alia, that mental health courts and diversion programs based on the problem-solving court model, utilising principles of therapeutic jurisprudence, should be introduced in Victoria. As a result of this inquiry, several key stakeholders, including the Attorney-General, began making inquiries about the approaches of other jurisdictions when dealing with mentally ill offenders. The Mental Health Courts and the Mental Health Diversionary Lists of Canada were particularly influential (see Chapter 6). 11 Upon his return from trips to Canada to investigate such institutions in October 2008, the then Victorian Attorney-General, Mr Rob Hulls, released a Ministerial Statement outlining the Victorian Government’s plans for the Victorian criminal justice system, 12 stating that the Victorian Government would consider new approaches to addressing the needs of accused persons 4

Brophy & McDermott, 2003; Dawson, Romans, Gibbs & Ratter, 2003.

6

Brophy et al, 2006.

5 7

Carney, 2003.

Brophy et al, 2006; Dawson, 2005.

8

See s 181(1)(d) of the Mental Health Act 2014 (Vic).

10

Freckelton, 2005.

9

11

12

Mullen & Ogloff, 2009; Freckelton, 2005. Department of Justice of Victoria, 2006.

See Chapter 6 for a more detailed discussion of this. [5.50] 93

Criminal Courts and Mental Illness

who were diagnosed with a mental illness. 13 In May 2009, the Victorian Minister for Mental Health announced that there would be a pilot Mental Health List in the Melbourne Magistrates’ Court, as part of Victoria’s new approach to addressing the needs of mentally ill offenders. 14

Melbourne Magistrates' Court [5.60] The Magistrates’ Court of Victoria was established under s 4 of the Magistrates’ Court Act 1989 (Vic). 15 The court has criminal and civil jurisdiction as well as jurisdiction under a number of specialist Lists. The Koori Court, Court Referral and Evaluation for Drug Intervention and Treatment Program (CREDIT)/Bail Support Program, Court Integrated Services Program, Neighbourhood Justice Centre, Drug Court, Assessment and Referral Court List, Sexual Offences List, Criminal Justice Diversion Program, Family Violence Courts and Services, Mental Health Court Liaison Service and Enforcement Review Program operate to comprise the court’s problem-solving framework. 16 These specialist courts are conduits for the use of law as a therapeutic agent. Specialist programs that relate to offenders diagnosed with a mental illness are discussed in greater detail below.

Mental Health Court Liaison Service [5.70] The Mental Health Court Liaison Service is a court-based assessment and advice service provided by Forensicare of the Victorian Institute of Forensic Mental Health. The service was first established at the Melbourne Magistrates’ Court in November 1994. Since that time, the service has been extended to the Magistrates’ Courts in eleven other regions of Victoria including Geelong, Shepparton, Bendigo, Ballarat, La Trobe Valley, Broadmeadows, Dandenong, Frankston, Heidelberg, Ringwood and Sunshine. 13 14 15

16

Department of Justice of Victoria, 2008. Minister for Mental Health, 2009. The history of this court dates back to colonial times. In 1836 the City of Melbourne gathered to appoint the first arbitrator. Three months later, Captain Lonsdale was appointed as the Police Magistrate for the territory of Port Philip by the Governor of New South Wales and the first case was heard in October 1836. In July 1838, the city of Melbourne was identified by Lonsdale for a sitting of the Petty Court Sessions and by 1880 these courts sat at 235 locations throughout Victoria (Magistrates Court of Victoria, 2014). Prior to the 1989 Act, the functions of the Magistrates’ Court of Victoria were performed by local Magistrates’ Courts, to which state-appointed magistrates (usually from the ranks of the clerks of the court) were assigned and whose administrative infrastructure was provided by the state public service. The Court currently sits at 54 metropolitan and regional locations and as of the 30 June 2013 comprised 116 magistrates, 12 reserve magistrates and six judicial registrars (Magistrates’ Court of Victoria, 2013). The original jurisdiction of this court has been expanded over the years to both the criminal and civil jurisdictions along with several specialist jurisdictions. Magistrates’ Court of Victoria, 2013.

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The service provides: • mental state assessment and advice regarding the management and needs of persons referred;

• verbal and written reports to the court, as required; • assistance with the transfer of acutely mentally unwell people to local area mental health services;

• training and education for judicial, other legal and support service staff regarding the role of the Mental Health Court Liaison Service;

• close collaboration with the court integrated services program in the management of people referred;

• advice for custodial staff on the management of people in custody, such as medication management;

• advice regarding risk issues related to mental illness; • referral and linkage to support services; and • consultation and advice to support agencies, professional representatives and family members involved in a client’s care. 17

The service accepts referrals from anyone who has a concern about the mental health of individuals who will be appearing before the court on criminal charges. As a result of the increasing need for a more intensive longer-term intervention strategy, the Court Integrated Services Program and the Assessment and Referral Court List were created within the Magistrates’ Court of Victoria. The service works closely with the Court Integrated Services Program, both referring clients to this program, and receiving referrals from them. At the Melbourne Magistrates’ Court, the Mental Health Court Liaison Service has formed a close working relationship with the ARC List since ARC commenced in 2010.

Court Integrated Services Program [5.80] The Court Integrated Services Program has been operating out of three venues in the Magistrates’ Court of Victoria (Melbourne, Sunshine and the La Trobe Valley) since 2007. 18 The goal of this program is to provide short-term (three to four months) pre-sentence assistance to offenders, who have an identified physical, mental illness or disability, substance abuse issues or inadequate community and family support structures and who offend largely because of these reasons. This program provides a “service response” that decreases in the level of intervention and intensity from the most rigorous intervention, to intermediate and community based referrals, which vary according to the offender’s level of risk and need. 19 Offenders are given access to personalised treatment plans and case management plans, as well as dedicated support services and workers. 17 18 19

Magistrates’ Court of Victoria, 2013. Ross, 2009.

Ross & Graham, 2012.

[5.80] 95

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Ross and Graham (2012) conducted a study of the ability of the Court Integrated Services Program to bring about positive improvements in the lives of the offenders on its program list. They found that, while there is strong evidence that court-based programs can improve the offender’s health and community status in the short term, it was not clear whether these positive improvements would be maintained in the long term.

THE ASSESSMENT AND REFERRAL COURT LIST IN THE MAGISTRATES' COURT OF VICTORIA The Project Plan for the ARC List [5.90] Tables 5, 6 and 7 (below) present the program logic map that was created at the time of the inception of the ARC List and was developed by ARC List staff. 20 The program logic plan was evidence-based and was developed in consultation with current literature and the ARC List Implementation Working Group. The program drivers were evidence-based practices that were identified through studies of the numerous international Mental Health Courts and Diversion lists (discussed in Chapter 4). The Victorian ARC List was created and based on the therapeutic jurisprudence model, to respond to the increased complexity of offender needs and the chronic over-representation of mentally ill accused persons in the Victorian criminal justice system. 21 Prior to the creation of this List, there was considerable input from the staff of the Magistrates’ Court of Victoria, including the Magistrates themselves (see Chapter 6) as well as involvement from other key stakeholders and contracted services. The program logic map describes the expected links between the inputs and activities of the program and the short, medium and long-term outcomes that it was anticipated that the ARC List would have.

20 21

The information presented in this section was provided by the Assessment and Referral Court List. Therapeutic Jurisprudence (2014) Retrieved on 26 July 2015 from http://www.lawyersweekly.com.au/ features/6636-therapeutic-jurisprudence

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Table 5 Program logic map showing short-term outcomes Participant Outcomes

Court Outcomes

Short Term Outcomes (0–6 months) [Active] Participation in program. • Program motivates participants to make positive behavioural changes. • Reduced substance abuse by participants. • Active engagement by participants with individual support plans. • Achievement by participants of individual support plan goals. • Attendance at appointments. • Participants perceive an improvement in their quality of life. • Reduction in the number of participants with a mental illness being remanded due to a lack of community supports. • List participants access appropriate community services. • Welfare, health and mental health needs of participants addressed. • Improved participant’s health and mental health and reduced welfare needs. • The program is meaningful and understandable for participants.

• List magistrate receives expert clinical advice. • Better informed judicial decision-making and increased options for magistrates. • Court process becomes less alienating and more meaningful.

Table 6 Program logic map showing medium term outcomes Medium Term Outcome (6–24 months) Participant Outcomes

• • • •

Court Outcomes

• Improved links between court support services and community agencies. • Improved capacity of generic services to work with participants. • Improved understanding by court of mental illness and cognitive impairment. • Key stakeholders understand the program and have an improved confidence in the court’s response to individuals who have a mental illness or cognitive impairment. • Program demonstrates economic benefit.

Increased compliance with court based Community Orders. Reduced offence related behaviour by participants. Reduced frequency and seriousness of offending. Maintain improvements in participants’ health, mental health and social well-being. • Increased social connectedness. • Maintain improvements in the participants’ perceived quality of life.

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Table 7 Program logic map showing long term outcomes Long Term Outcome (24 months and beyond) Overall Intended Outcomes

• • • • •

Increased public confidence in the criminal justice system. Reduced risk of harm to the community. Reduced number of individuals with mental illnesses in prison. Improved mental health outcomes for participants. Increased understanding and confidence amongst stakeholders.

It is interesting to note that the reduction in re-offending is a medium term goal that was scheduled to be completed in the 6–24 month period. From this it can be inferred that the court rates the participant’s re-engagement with services above the importance of diminishing recidivism behaviours. The ARC List implementation group projected that the List would: • be a problem-oriented court; • seek increased judicial monitoring of accused persons; • provide for the use of specialist and independent court advisors who were experts in the area of mental health;

• utilise clinical assessments that were conducted by experienced clinicians; • provide case planning and management that would target the needs of the mentally ill accused person;

• provide linkages to community services; and • utilise the court’s diversionary powers. Ultimately it was hoped that the ARC List would: • address the underlying factors that contribute to the offending behaviour of individuals who have a mental impairment;

• improve the access of ARC List participants to appropriate treatment and other support services;

• enhance processes by which the court can respond to accused persons who suffer from a mental impairment;

• increase the options that are available to the court when responding to accused persons who have a mental impairment; and

• where appropriate, direct participants to therapeutic rather than corrective pathways.

The ARC List Pilot [5.100] The 2009–2010 Victorian State budget allocated $13.8 million (comprising $10.9 million of new funding and $2.9 million of re-prioritisation of existing resources) over four years, for the creation of a specialist mental health list within the Magistrates’ Court of Victoria. 22 The Magistrates’ Court Amendment (Assessment and Referral Court List) Act 2010 (Vic) received Royal Assent on the 30 March 2010. This Act established the ARC List in the Magistrates’ Court for a 22

Victorian State Budget. (2009) Retrieved on 26 July 2015 from http://www.book.budget.vic. gov.au/ CA25755B0004CE3B/pages/budget-overview

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trial period for two years. The ARC List formally commenced operation in March 2010 and the first sitting day of the ARC List was 21 April 2010. In 2012, the ARC List was formally evaluated by KPMG, an independent auditing firm, with the evaluation complete by November 2012. The ARC List secured a further two years funding in 2013. While the purposes of the formal evaluation included an analysis of the effectiveness of ARC List processes against its medium and long-term outcomes, the main purpose of this evaluation was to examine the economic efficiency of the ARC List to determine whether or not it should receive ongoing funding. Unfortunately, because this evaluation was undertaken on behalf of the Victorian Government’s Budget and Expenditure Review Committee, the evaluation is deemed to be “Cabinet in Confidence” and will not be made available to the court or to the public. Changes were made to the underpinning legislation of the ARC List via the Court and Other Justice Legislation Amendment Act 2013 (Vic). The provisions that are relevant to the ARC List came into effect on 1 February 2014 and relate to its intake powers, which will be discussed in greater detail below.

What is the ARC List? [5.110] The ARC List operates as a specialist court list that was established to identify and address the underlying causes of offending behaviours of individuals suffering from a diagnosed mental illness or some form of cognitive impairment. By addressing issues that underlie offending behaviour, the ARC List seeks to reduce the likelihood of re-offending and ongoing contact with the criminal justice system. 23 The ARC List was modelled on similar interstate programs in South Australia and Tasmania (as discussed in Chapter 4) as well as the model presented by the North American Mental Health Courts, specifically the Ontario Mental Health Court in Toronto, Canada. 24 The Program is based at the Melbourne Magistrates’ Court and sits in the same courtroom three days per week. During 2012–2013, Deputy Chief Magistrate Jelena Popovic, and Magistrates John Lesser, Ann Collins, Anne Goldsbrough and John Hardy sat in the ARC List. 25 All magistrates also sit in other specialist lists as well as in mainstream court hearings. From July 2010 to June 2011, the ARC List held 782 hearings. The List received 178 referrals and 63 participants were accepted into the program. During this period, 17 participants completed the program, with six leaving the program prior to completion. As of 30 June 2011, there were 53 active participants. The number of referrals from July 2013 to June 2014 had decreased to 168 but the number of active participants increased to 63. This may be due to changes in the eligibility requirements mandated by legislation. 23 24 25

Magistrates’ Court of Victoria, 2013. Lesser, 2011.

Magistrates’ Court of Victoria 2013.

[5.110] 99

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The ARC List is best categorised as a pre-sentence program, as it aims to defer sentencing until the participant has been given the opportunity to participate in early intervention programs, which include treatment and rehabilitation, while formal court processes are adjourned. The ARC List aims to: • reduce the risk of harm to the community by addressing the underlying factors that contribute to the offending behaviour of individuals with a diagnosed mental impairment;

• facilitate improvements in the health and well-being of accused persons who have a mental impairment by facilitating access to appropriate treatment and other support services;

• increase public confidence in the criminal justice system by improving court processes and increasing options available to courts in responding to the accused person suffering from a mental impairment; and

• reduce the number of offenders with a mental impairment received into the prison system. 26

ARC List eligibility criteria [5.120] An individual is eligible for admission into the ARC List if: • The case is listed to be heard in the Magistrates’ Court of Victoria (proper venue rules apply in accordance with s 4S(3)(s) of the Magistrates’ Court Act 1989 (Vic).

• The mentally ill individual has been charged with one or more criminal offences within the jurisdiction of the court, either summary offences or indictable offences that are capable of being heard summarily. 27 However, in accordance with s 4S(3)(a)(i)–(iii) of the Magistrates’ Court Act 1989 (Vic), offenders who have been charged with a serious, sexual or violent offence (as defined in s 6B(1) of the Sentencing Act 1991 (Vic)) are not eligible for participation in the List.

• The individual consents to be involved with the List and consents to service providers sharing information in accordance with s 4S(3)(c) of the Magistrates’ Court Act 1989 (Vic).

• The individual meets the diagnostic, functional and needs criteria for admission into the ARC List in accordance with s 4S(3)(b) and s 4T(1)(a)–(c) of the Magistrates’ Court Act 1989 (Vic).

Where an individual decides to plead not guilty, or has indicated an intention to plead not guilty, a proceeding in the ARC List must be immediately transferred out of the List and into a contested hearing within the mainstream criminal justice system. This may happen at any stage in accordance with s 4TX(2)(a) and (b) of the Magistrates’ Court Act 1989 (Vic). 26 27

Magistrates Court Assessment and referral Court List (2015) Retrieved on 26 July 2015 from https://www.book.magistrates court.vic.gov.au/jurisdictions/specialist-jurisdictions/court-supportservices/assessment-and-referral-court-list-arc Lesser, 2011.

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Diagnostic criteria [5.130] To be eligible to access the ARC List, participants must meet the diagnostic criteria outlined in s 4T(1) – (4)(a) of the Magistrates’ Court Act 1989 (Vic). These criteria mandate that participants must have a diagnosis of one or more of the following: • • • •

mental illness; intellectual disability; acquired brain injury; autism spectrum disorder; or

• neurological impairment including, but not limited to, dementia. Interestingly, a formal diagnosis is not necessarily required for referral. However, prior to entry into the List, the potential ARC List participant is assessed using the DSM-5 28 diagnostic criteria and a formal diagnosis is reached. In general, individuals with a personality disorder and/or a substance abuse disorder will not be disqualified from the List, unless this is their only diagnosis. However, history suggests that these sorts of diagnostic presentations often occur co-morbidly. 29 In 2010–2011, the primary diagnoses of ARC List participants were mental illness (55%), acquired brain injury (29%) and intellectual disability (16%). 30

Functional criteria [5.140] To be eligible to access the ARC List, participants must meet the functional criteria outlined in s 4T(2) of the Magistrates’ Court Act 1989 (Vic). This provides that participants must have one or more of the disorders identified in the above diagnostic criteria and as a result of this diagnosis must have a substantially reduced capacity in at least one of the following areas: • • • •

self-care (s 4T(3)(a) of the Magistrates’ Court Act 1989 (Vic)); self-management (s 4T(3)(b) of the Magistrates’ Court Act 1989 (Vic)); social interaction (s 4T(3)(c) of the Magistrates’ Court Act 1989 (Vic)); and communication (s 4T(3)(d) of the Magistrates’ Court Act 1989 (Vic)).

Needs criteria [5.150] To be eligible to access the ARC List, participants must meet the needs based criteria outlined in s 4T(4) of the Magistrates’ Court Act 1989 (Vic). These criteria stipulate that the accused should derive benefit from receiving co-ordinated services in accordance with an individual support plan that may include one or more of the following: 28 29

30

APA, 2013. Lesser, 2011.

Magistrates’ Court of Victoria, 2011. [5.150] 101

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• psychological assessment (s 4T(4)(a) of the Magistrates’ Court Act 1989 (Vic)); • welfare services (s 4T(4)(b) of the Magistrates’ Court Act 1989 (Vic)); • health services (s 4T(4)(c) of the Magistrates’ Court Act 1989 (Vic)); • mental health services (s 4T(4)(d) of the Magistrates’ Court Act 1989 (Vic)); • disability services (s 4T(4)(e) of the Magistrates’ Court Act 1989 (Vic)); • alcohol or other drug treatment services (s 4T(4)(f) of the Magistrates’ Court Act 1989 (Vic));

• housing and support services (s 4T(4)(g) of the Magistrates’ Court Act 1989 (Vic)); and • other services, as required, aim to reduce the risk of offending or re-offending (s 4T(4)(h) of the Magistrates’ Court Act 1989 (Vic)).

Specific powers of the ARC List [5.160] The Magistrates’ Court Act 1989 (Vic) confers specific powers on the magistrates in this List (s 4U(2)(a)–(d) of the Magistrates’ Court Act 1989 (Vic)). The court may: • at any time convene a hearing to receive reports on an accused’s progress and compliance with his or her individual support plan (s 4U(2)(a) of the Magistrates’ Court Act 1989 (Vic));

• adjust, amend or vary any individual support plan of an accused (s 4U(2)(b) of the Magistrates’ Court Act 1989 (Vic));

• at any time remove a criminal proceeding from the List (s 4U(2)(c) of the Magistrates’ Court Act 1989 (Vic)); or

• at any time, discharge an accused or indicate an intention to discharge an accused (s 4U(2)(d) of the Magistrates’ Court Act 1989 (Vic)).

Requirement for informality of proceedings [5.170] Like other similar initiatives, the ARC List is statutorily mandated to exercise its jurisdiction with as little formality and technicality and with as much expediency as the proper process would allow (s 4U(3) of the Magistrates’ Court Act 1989 (Vic)). 31 ARC list participants are asked to attend the ARC List on a regular basis to discuss their progress in achieving their set goals with the ARC List magistrate. One of the main features that differentiates the operation of the ARC List from other more traditional criminal justice settings, is the informal setting that is able to take into account the particular needs of individuals who have mental health or cognitive impairment issues. During their involvement in the ARC List, which may be for up to twelve months, participants attend regular hearings, usually monthly. Hearings are interactive and support the principles of therapeutic jurisprudence through recognising the needs of participants and taking a problem-solving approach (see Chapter 3 for an in-depth discussion of this) to issues, barriers and progress. 31

See, for example, s 4A(5) Drug Court, s 4D(4) Koori Court and s 4N(6) Neighbourhood Justice Centre of the Magistrates’ Court Act 1989 (Vic).

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ARC List referral process [5.180] The following passage extracted from Lesser (2011) sets out the somewhat lengthy referral process for mentally ill offenders wishing to gain access to the ARC List. An understanding of the referral process is important as referral is a fundamental aspect of the List and it sets the parameters for the future interactions between the participant and the court. 1.

ARC Referral Form is available at the Court Integrated Services Program counter at the Magistrates’ Court and this form is to be completed by the referrer.

2.

After consultation with ARC List staff, the magistrate remands/adjourns matters to a pre-allocated List hearing date (usually within four weeks) to facilitate assessments, along with ARC bail conditions.

3.

Court integrated services program conducts the initial screening assessment, which may be done in the same day in urgent cases.

4.

Court integrated services program addresses the immediate support needs of the person, irrespective of this acceptance into the ARC List.

5.

ARC liaison and allocation meeting to consider recommendations about acceptance.

6.

Comprehensive assessment and report by clinical advisor.

7.

ARC List magistrate considers referral acceptance into the List.

8.

Clinical advisor develops an Individual Support Plan with the participant and relevant clinicians and support workers.

9.

ARC List magistrate considers the approval of the Individual Support Plan.

10.

ARC List magistrate determines whether or not to accept the participant into the ARC Program. 32

Both the court integrated services program and ARC List programs rely heavily on referrals to, and co-operation from, health services and community organisations. Collaborative relationships with Victoria Police Prosecutions Branch, Victoria Legal Aid and various community and welfare agencies support the continued achievement of positive outcomes within the ARC List. The ARC List aims to identify the needs of each participant and to assist the participant in resolving these needs. This process is supported by the ARC List team, which consists of a program manager, three psychologists and a social worker, as well as collaboration with Court Integrated Services Program team. The ARC List team undertakes a clinical assessment with each participant and provides support to them throughout their involvement with the List, while the court integrated services program provides short-term case management for many participants. Court-based clinical advisors and case advisors work with each participant to develop and implement an individual support plan. The creation of the individual support plan involves linking participants with appropriate community-based supports and services. 32

Lesser, 2011. [5.180] 103

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ARC List referrals [5.190] Many different individuals and organisations have referred clients into the ARC List. They include self-referrals, magistrates, court-based support workers, for example team members from the court integrated services program, external support workers, case managers, legal representatives, police, including both informants and police prosecutors, guardians or anyone else involved in the individual’s life (see Chapter 6). However, most of the referrals to the ARC list in fact come from lawyers and magistrates; the court integrated services program accounts for a small but not inconsiderable number of referrals and other sources play a negligible role. The most common referral source was from members of the legal profession, including the private lawyers (46), lawyers from Victoria Legal Aid (37) and the magistrates (33) (including both ARC List magistrates and magistrates from other courts). Noteworthy is the rarity of self-referrals. This highlights the fact that those who need the assistance the List offers are not in a position to get themselves referred and then accepted and depend on magistrates, lawyers and court services for this. See Table 8 below. Table 8 Referral sources for the 2011 financial year Referral Source Court integrated services program Community Department of Human Services Community Legal Centre Legal – Private Sector Legal – Victoria Legal Aid Magistrate Self-referral Victoria Police Unknown (missing data)

Number of Referrals received 25 1 3 2 46 37 33 1 1 18

Figure 4 (below) indicates that overall the number of referrals made to the ARC List has decreased slightly over the past four years, since its commencement. In the 2010 financial year, 178 referrals were received by the ARC List while the amount of referrals decreased in the 2011 financial year to 154. This decrease may be attributed to the court being novel in its first year. However, it should be noted that of the 178 referrals made in 2010, only 63 participants (see Figure 5) were accepted onto the ARC List. Of the 154 referrals made in 2011, 82 participants were accepted into the List. In 2012, there were 172 referrals made and 97 participants were accepted into the ARC List. This variance may be attributed to early referrers’ initial limited understanding regarding ARC List eligibility and acceptance criteria. This has been addressed in subsequent years through a developing awareness and understanding of ARC List requirements. 104 [5.190]

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The acceptance rate of referrals has increased from 35% in the 2010–2011 financial year, to 53% in the 2011–2012 financial year, to 56% in the financial year between 2012–2013. See Figure 4 below. Figure 4 The number of referrals to the ARC List program from 2010 until 2014

Discharge from the ARC List [5.200] When an ARC List participant successfully completes their individual support plan to the satisfaction of the court, the court may, in its discretion, choose to discharge the accused without any finding of guilt (s 4Y(2) of the Magistrates’ Court Act 1989 (Vic)). Where an accused is discharged by the court, the fact of participation in, or completion of, an individual support plan and the discharge of the accused is a defence to a later charge for the same offence or a similar offence arising out of the same circumstances (s 4Y(4) of the Magistrates’ Court Act 1989 (Vic)). Where an accused person takes part in an individual support plan and the accused is subsequently found guilty of the charge, the court must take into account the extent to which the accused participated in the individual support plan when sentencing the accused (s 4Y(5) of the Magistrates’ Court Act 1989 (Vic)). However, where an accused fails to successfully complete an individual support plan and is subsequently found guilty of the crime, then the court must not take into account the accused’s failure to participate in sentencing (s 4Y(6) of the Magistrates’ Court Act 1989 (Vic)).

[5.200] 105

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STATISTICS FROM THE ARC LIST ARC List data [5.210] This section of the book presents statistics that were published in the annual reports of the Magistrates’ Court of Victoria for the years 2010–2011, 2011–2012, 2012–2013 and 2013–2014. Figure 5 ARC List for the financial years of 2010, 2011 and 2012

Figure 5 compares the number of participants who were accepted into the program, the number of participants who completed and did not complete the ARC List program, between the financial years of 2010, 2011 and 2012. 33 From Figure 5, it can be seen that in the years since the ARC List program began, the number of participants who have been accepted into the List has steadily increased. 34. The number of ARC List participants who have successfully completed their individual support plan in accordance with ARC List requirements has increased from 17 in 2010, to 52 in 2011 and 73 in 2012. The number of ARC List participants who did not complete the program has been variable, with a notable increase in 2011 from 6 to 18, which decreased in 2012 to 11. 33 34

Please note that the Magistrates’ Court of Victoria did not provide further statistics in its Annual Report for the financial year, 2013–2014. It was not possible to obtain the total number of defendants processed by the Magistrates’ Court who were eligible for admission into the ARC List. This would have enabled an estimation of the true impact of the ARC List. For example, if a large proportion of the relevant population is found to be mentally ill then the program benefits only a tiny proportion of that population, thereby limiting the good that this List can do.

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Figure 6 ARC List hearings held each year between 2010 and 2014

From Figure 6, it can be seen that the number of ARC List hearings per year has increased by 222% from 782 hearings in the first year to 1742 hearings in 2012. This is commensurate with the increase in the number of active participants in the ARC List each year. This increase may in part be due to the fact that participants are appearing in front of magistrates on a more regular basis than in previous years due to the nature of the ARC List program requirements. Figure 7 Primary diagnosis for ARC List participants in the years between 2010–2013

[5.210] 107

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From Figure 7, it can be seen that mental illness is the most common diagnosis in each year, followed by acquired brain injury, intellectual disability, autism spectrum disorder and neurological impairment. Although there has been an increase in the number of participants diagnosed with a mental illness, this is not unexpected because the number of participants has also increased. For the 2010 financial year, the ARC List held 782 hearings adjudicated by the same five presiding magistrates. During this period, 17 participants completed the program, with six leaving the program prior to completion; data regarding the reasons for leaving were not provided in the relevant annual report. As of 30 June 2011, there were 53 active participants whose cases were not yet resolved so they carried over into the ARC List program for the next financial year.

ARC List data for the financial year between 1 July 2011–30 June 2012 [5.220] For the 2011 financial year, the ARC List held 1742 hearings with five sitting magistrates. The List received 172 referrals and 9 participants were not accepted into the program. Table 9 below presents the total number and reasons that matters were removed from the ARC List. Table 9 Reason for removal of ARC participants from the List in the 2011 financial year Reason for Removal Unsuitable Removed due to non-attendance Removed due to further offending Plea of not guilty prior to formal acceptance Participant withdrew consent to continue in the ARC List Program

Number of Participants 9 5 13 3 10

During this period, 70 participants completed the program. Table 10 below presents the breakdown and the number of clients finalising matters in the ARC List. Table 10 Program status for ARC participants in 2011 Program Status Completed the Program – Plea of guilty Did not complete the program – non attendance Did not complete the program – remanded Completed program – Plea of not-guilty Client Death

Number of Participants 70 2 7 1 1

Annual reports for the Magistrates' Court of Victoria [5.230] The data made available in each annual report from the Magistrates’ Court of Victoria has been inconsistent and has made the comparison of the years that the ARC List has been in operation quite challenging. For example, 108 [5.220]

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from year to year, the annual reports created by the court did not provide a commensurate level of data when compared to previous years. This inconsistency created gaps in the analysis and did not allow for a year-by-year comparison of all areas. No reasons were published for this. In 2013–2014, six magistrates sat and ARC received 168 referrals according to the published data. The annual reports from 2010–2011, 2011–2012, and 2012–2013 indicate the court’s commitment to the ARC List program and its success. The annual reports include case studies of successes (set out in Appendix 1). There is however, an element of selectivity in the reports: despite the fact that the program is sometimes (understandably) unsuccessful, the reports include no examples of cases where defendants have not apparently benefitted from the program. The case studies shed light on the types of clients that ARC accepts and some of the possible outcomes that can ensue when the participant completes the program and engages with the ARC team. The annual report from the financial year 2012–2013 also contains a reflection on the List, from the perspective of the judiciary from Magistrate Anne Goldsbrough (see Appendix 2). This reflection provides a poignant insight into role of a magistrate working within the ARC List process. The magistrate speaks highly of the ARC List and is passionate about the perceived effectiveness of the List. This reflection also sheds light on the role of judicial monitoring in the ARC List process, and would provide an interesting avenue for further research. Appendix 3 outlines the community engagement activities that the ARC List has conducted since its inception. It is clear that the ARC List is attempting to actively engage with the community in order to increase its profile and to promote its use to various stakeholders, including academics, legal practitioners, court administrators, health care workers and the public. This seeks to increase the efficacy of the ARC List by encouraging research and by educating possible referrers to the list. The list of visitors indicates that the ARC List is creating interest both nationally and internationally and this is testament to the perceived effectiveness of the ARC program. The ARC List has also been recognised by the State of Victoria and the City of Melbourne, and in 2013 was awarded the Melbourne Award and the Mental Health Services Silver Award (see Appendix 4).

[5.230] 109

CHAPTER 6 Does the ARC List Reduce Recidivism? A Quantitative Study [6.10] [6.20] [6.110] [6.150] [6.160]

Introduction ............................................................................................... 111 Current study ............................................................................................ 111 Results......................................................................................................... 117 Discussion .................................................................................................. 121 Study limitations ...................................................................................... 123

INTRODUCTION [6.10] Fundamental to the therapeutic jurisprudence movement is that it works where traditional criminal justice approaches do not. If programs based on the therapeutic jurisprudence approach are in fact more successful, this tends to identify the superiority of therapeutic jurisprudence. If on the other hand, they make no difference, or make things worse, this suggests that they too are failures, and expensive ones at that. If these programs succeed in reducing recidivism, this lends credibility to claims of their effectiveness. Success can be measured by a number of criteria however, the prevailing view was that the success of the program turns on whether it reduces the likelihood of further offending by those who participate in the ARC List. This approach to assessing program efficacy was supported by the literature discussed in Chapter 3. Respondents rarely suggested that therapeutic jurisprudence was good in itself and defences of therapeutic jurisprudence used cost benefit arguments which would not stand up if the List yielded no less recidivism, despite its greater cost per defendant.

CURRENT STUDY [6.20] This study yielded both qualitative data, that was analysed using thematic analysis, and quantitative data that has been coded and analysed to provide a picture of the ARC List that has operated in Victoria since 2010. The purpose of the current study is to assess the efficacy of the operation of the Magistrates’ Court of Victoria’s Assessment and Referral Court List using similar procedures to those of Lim and Day (2014). In this way, the operation of the various diversionary lists in Australia can be recorded in a way that allows for the generalisation of the efficacy of these diversionary programs across Australia. The aim of this current analysis is to determine if participation in the Assessment and Referral Court List within the Magistrates’ Court of Victoria reduces: (a) the likelihood of recidivism; (b) the time between offences (among those who recidivate); and (c) the seriousness of offences. The study will also [6.20] 111

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examine the extent to which a range of offender and offence characteristics (mental health diagnosis and offence type) predict the likelihood of a participant re-offending, following the successful completion of the ARC List program.

Methodology 1 Procedure [6.30] Archival de-identified data was collected from the Victorian Magistrates’ Court ARC List database for a four-year period, from 1 April 2010 to 1 April 2014 (n = 690). A descriptive analysis was conducted on this cohort, which includes all those who were accepted into the List during the above period. Archival de-identified data (n = 99) was also obtained from the Victorian Magistrates’ Court database to inform a list of pre-ARC List proven offences, which were acquired for the purpose of a recidivism comparison to post-ARC List offending behaviours. For each member of this cohort (n = 99) the data that were recorded were: • details of pre-admission convictions within the period two years prior to admission; • details of convictions recorded during the period in the program; and • details of convictions recorded in the two-year period following completion of the program.

The dates of any subsequent offences were recorded for these purposes. The sample was divided into two groups: those who completed the ARC List program (program completers) and those who did not (non-completers). Survival analyses were conducted to examine the time to recidivism for these two groups. The data was then examined to identify whether the severity of offending decreased after participation in the ARC List and whether or not there was any statistically significant relationship between recidivism behaviours and program completion, gender, age and number of days as a program participant.

Offence classification and coding [6.40] Primary offences were determined by the classification procedures outlined in the Australian and New Zealand Standard Offence Classification 2 (ANZSOC; Australian Bureau of Statistics, 2011) and in the National Offence 1 2

See Appendix 5. The Australian and New Zealand Standard Offence Classification (2011, 3rd ed) was developed for use in Australia and New Zealand by the Australian Bureau of Statistics in the compilation and analysis of crime and justice statistics in the two countries. The purpose of this classification system is to improve crime and justice statistics and to provide a mechanism for the standardisation of legal terminology.

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Index (Australian Bureau of Statistics, 2009). 3 Participants’ offences were separated into three offence categories – serious, moderately serious and minor – which are based on the categories of offence severity taken from the National Offence Index (NOI). 4 The NOI allows for the ordinal ranking of offence severity and this can be used in conjunction with the ANZSOC to provide a primary offence category for more than one offence. In order to do this, the procedures outlined in the ANZSOC 5 were used to code the individual offences. For example, a charge of common assault would be coded as “acts intended to cause injury or harm”. Where there were multiple offences within the same incident, for example “theft” and “assault” (which is distinct to robbery) then the NOI would be used to determine the primary offence category. Therefore, a charge of “damage to property not a building or motor vehicle/common assault” would code “acts intended to cause injury or harm” as the primary offence, on the basis that the NOI “assault” rating ranks higher than “theft” or “property damage”. 6 In line with this approach, in the current analysis, participant offending was also separated into three offending categories based on the hierarchical offence severity rankings found in the NOI: 1. 2. 3.

serious; moderately serious; and minor.

Data Preparation and analyses [6.50] All data analyses were conducted using IBM PASW Statistics Version 22 (also known as the SPSS program) 7 and significant levels for the analyses were maintained at α < .05. Raw data were entered and recoded where appropriate and incorrect entries and missing data (there were none) were screened using SPSS frequencies and descriptive variables. The Kaplan-Meier product-limit method 8 was utilised to assess differences between program completers (those who completed the ARC List program) and non-completers (those that did not complete the ARC List program). The 3

4

The National Offence Index (ABS, 2009) was also developed by the Australian Bureau of Statistics as a tool to enable the output of nationally comparable offence information within the field of crime and justice statistics. The National Offence Index is a tool that provides an ordinal ranking of the offence categories in ANZSOC according to perceived seriousness in order to determine a principal sentence. The purpose of this Index is to enable the representation of an offender by a single offence in circumstances where multiple offences occur within the same incident or where defendants have multiple charges. Australian Bureau of Statistics (ABS), 2009a.

6

Lim & Day, 2014.

5 7

8

ABS, 2011.

IBM, 2013.

Kaplan & Meier, 1958. [6.50] 113

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Kaplan-Meier method is a non-parametric method used to estimate the probability of events occurring past given time points. Furthermore, this method allows for probability distributions of two or more groups of a between-subjects factor to be computed for equality. As such, the Kaplan-Meier method was used to help achieve the major research goal: to determine whether there was a statistically significant difference between the onset of re-offending distributions of the ARC List program completers and ARC List program non-completers. A Friedman three-way ANOVA was used to compare participants’ offending profiles prior to program commencement, during the program, and 24 months post-program, as these were ordinal variables. 9 Pair-wise post hoc comparisons using the Wilcoxon Signed Rank test 10 and a Bonferroni adjusted α of .17 were conducted to evaluate the three pairwise comparisons. A one-way discriminant function analysis was conducted to predict post program recidivism within 24 months of program completion, based on a number of predictor variables. 11

Quantitative data [6.60] There was a limited amount of court data available to the researcher. This included: • intake data for most offenders referred to the ARC List (irrespective of suitability or eligibility), including gender, age, number and type of offences, whom they were referred by and whom they were represented by;

• limited clinical assessment data for all offenders accepted on to the ARC List, including diagnosis and service providers;

• appearance data for all offenders accepted on to the ARC List, including number of appearances, number of non-appearances and total number of days on the ARC List; and

• re-offending data from the Magistrates’ Court files only.

Descriptive data from the ARC List population [6.70] A cohort of 690 individuals who were accepted into the Assessment and Referral Court List of the Magistrates’ Court of Victoria over a period of four years (1 April 2010 to 1 April 2014) were included in the study. This comprised 543 males, 144 females and three individuals who identify as transgender, with ages ranging from 18 to 76 years (M = 38.75, SD = 9.75). Time spent in the program ranged from three months to over one year, with participants taking an average of eight months to complete the program. Participants generally had limited educational levels, including up to year 10 or below (50%) and completion of years 11 and 12 at secondary school (25%). Other participants had completed a TAFE or a trade certificate (5%), a tertiary program (2%) or their data was unknown (18%). 9 10 11

Kraska-Miller, 2013. Kraska-Miller, 2013. Tabachnick & Fidell, 2013.

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Participants were receiving income from various sources, however the main source of income was Centrelink payments for a disability support pension (64%), followed by Centrelink payments for various other reasons, including the aged pension, carers pension, the Department of Veterans Affairs, youth allowance or the unemployment benefit (25%). Other income sources included full-time employment (3%), casual or part-time employment (2%), TAC or Workcover (1%), living off savings or student (1%) and unknown (4%). Over 47% of participants were tested to assess whether they suffered from an intellectual disability. It was found that 19% of these participants had an IQ of less than 70, 5% of participants had a borderline IQ (between 70 and 75) and 58% of participants had an IQ of above 75, which is above the threshold for the diagnosis of an intellectual disability. It was unclear in 18% of cases whether or not the participant suffered from an intellectual disability, due to the inability of the clinicians to complete testing. 158 participants were found to be diagnosed with an acquired brain injury, the most common cause of which was traumatic injury (39%) followed by substance abuse (35%), alcohol (10%), hypoxia (6%), stroke (1%) and unknown (9%).

Primary mental health diagnoses of the ARC List population [6.80] A large number of participants had a diagnosed mood disorder (28%) such as depression or bi-polar disorder. Other common mental disorders were psychotic illnesses such as schizophrenia (17%), anxiety-related disorders (14%), psychosis (3%), personality related disorders (11%) and other behavioural disorders such as ADHD and conduct disorder (5%). In addition, a large number of participants (77%) are either dependant on, or abuse, a substance. Substances of choice included cannabis (27%), amphetamines (including ICE) (27%), heroin (25%) and benzodiazepines (7%). Furthermore, 63% of participants reported using, abusing or being dependant on alcohol. There were 3205 charges recorded, with an average of 4.6 charges per participant. The types of the primary offences varied in nature, with offences against property being the most common charge (37%), followed by offences against the person (14%), driving offences (10%), breaches of court orders (8%), drug related charges (7%), possession of controlled weapons (3%) and disorderly conduct including to beg alms (3%). Only around 1% of participants of the ARC List were charged with sexual offences (seven participants). The majority of these offences are non-violent in nature (62%), based on the classification procedure outlined in the NOI. 12

Recidivism current study [6.90] A cohort of participants who entered the ARC List in 2010 were selected to provide a sample to study recidivism patterns. Recidivism data was collected 12

ABS, 2009a. [6.90] 115

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on the 98 ARC List participants for three periods: (a) prior to 2010; (b) the time that participants were enrolled in the List; and (c) the two years post List completion. The aim of the study was to determine the degree to which participation in the Assessment and Referral Court List in the Magistrates’ Court of Victoria reduced the likelihood and likely severity of re-offending, by providing a comparative analysis of pre, peri, and post-program offending rates and the time taken to re-offend.

Participants [6.100] A sample of ninety-eight (98) individuals, who were accepted in the ARC List in 2010, were randomly selected to be included in the present study on recidivism and offence severity. Three participants were excluded from further analyses, as they did not complete the program because of their death. The final cohort comprised 67 males, with ages ranging from 22 to 58 years (M = 35.90, SD = 8.05) and 28 females, with ages ranging from 21 to 59 years (M = 36.14, SD = 10.98). Of the participating cohort, 22% had a diagnosed psychotic disorder, such as schizophrenia. Other common mental disorders were cognitive disorder (19%), mood disorders, such as bipolar or major depressive (18%), personality disorders (14%), intellectual disability (12%), substance abuse (11%), anxiety disorder (4%) and a behavioural disorder (ADHD) (1%). Of the 95 participants, 73 (76.8%) completed the program while 22 (23.2%) did not complete the program for a variety of reasons: non-attendance (7), remanded (9), not interested (5), and not guilty plea which resulted in matters being adjourned (1).

RESULTS Analysis of time to re-offend Table 11 Kaplan-Meier analysis of time in months to re-offend (n=55)

Mean Estimate

Std. Error

6.50

0.75

116 [6.100]

95% CI Lower Upper Bound Bound 5.04

7.97

Estimate 4.87

Median Std. 95% CI Error Lower Upper Bound Bound 6.42 0.79 3.31

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Figure 8 Time to re-offend (first apprehension after program completion within 24 months)

[6.110] Of the 95 participants, 55 (58%) re-offended within 24 months following completion of the program. Kaplan-Meier analysis was used to determine the time taken for all program participants to re-offend. The average time to re-offend was approximately 6.5 months for the proportion of individuals who did re-offend (n = 55, M = 6.50, SE = .75 (see Table 11; Figure 8). The results demonstrate that the majority (82%) of the re-offending took place within the first year.

Comparisons of time to re-offend by program completers/non-completers Table 12 Number of recidivists/non-recidivists by program completers/non-completers (n=95)

Program Completers (100%) Program Non-Completers Total

Recidivist 37 (50.7%)

Non-Recidivist 36 (49.3%)

Total 73

18 (81.8%)

4 (18.2%)

22 (100%)

55 (57.9%)

40 (42.1%)

95 (100%)

[6.120] The second Kaplan-Meier analysis compared re-offending times of program ARC List program completers with ARC List program non-completers. As shown in Table 12, the percentage of censored (non re-offending) cases in the program completers group (49.3%) was not similar to the program noncompleters group (18.2%). [6.120] 117

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Table 13 Kaplan-Meier analysis of time in months to re-offend for comparison between two groups (program completers versus program non completers) Program Group

Not Completed Completed Overall

9.10

Mean Std. 95% CI Error Lower Upper Bound Bound 1.74 5.68 12.51

15.31 13.87

1.12 0.99

Estimate

13.12 11.94

17.50 15.80

4.87

Median Std. 95% CI Error Lower Upper Bound Bound 0.80 3.30 6.44

21.87 13.60

* 3.07

Estimate

* 7.58

* 19.62

Note * If the cumulative proportion for an intervention group does not tip to 0.50, no medium time statistics will be calculated for that particular group.

As can be seen from Table 13 (above), participants who had completed the program had a median re-offence time of 21.87 months. This was longer than the participants who did not complete the program, which had a median time to re-offend of 4.87 months (95% CI, 3.30 to 6.44). A log rank test 13 was conducted to determine if there were significant differences between the two distributions. The re-offence distributions were significantly different, χ 2 = 8.40, df = 1, p < .01. Figure 9 Program completers/non-completers time to re-offend (first apprehension after program completion within 24 months)

13

Lee & Wang, 2013.

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The re-offending curve (Figure 9) illustrates a significant increase in time to re-offend for participants who had completed the program compared with those who had not over a period of 24 months.

Pre, during and post program offending profiles [6.130] Based on the hierarchical ranking of offence severity in the Australian NOI (ABS, 2009a) all offences were categorised as either “serious” such as assault, drug trafficking, robbery; “moderate” such as burglary, shop theft, criminal damage; or ″minor″ such as the use of obscene language, graffiti, failure to answer bail. As shown in Table 14, there was a statistically significant reduction in the frequency and severity of participants and a reduction in offending 24 months post program compared to during the program and pre-program. However, the significant reduction and frequencies were not maintained during the program and post program. It is noted that 42% (n = 40) of the 95 participants did not re-offend two years post program. Table 14 Pre, during and post program severity of offences frequencies

Offence Severity Did Not Re-offend (0) Minor (1) Moderate (2) Serious (3) Total

Pre-Program N % 12 12.6 11 33 39 95

11.6 34.7 41.1 100

During Program N % 58 61.1 3 24 10 95

3.2 25.3 10.5 100

Post Program N % 40 42.1 9 23 23 95

9.5 24.2 24.2 100

As the severity of offences is an ordinal variable, a Friedman three way ANOVA was conducted to evaluate differences in mean ranks among severity of offences pre-program (2.46), during program (1.57), and post program (1.97) (refer to Table 15 for details). The test was significant, χ 2F = 58.48 (corrected for ties), df = 2, p < .001, and Kendall’s coefficient of concordance of .31 indicated strong differences among the three periods. Table 15 Friedman three way ANOVA for severity of offences by time Time Pre Program During Program Post Program

Mean 2.04 0.85 1.31

SD 1.02 1.13 1.25

Mean Rank 2.46 1.57 1.97

Note 2 F = 58.48 (corrected for ties), n = 95, df = 2, p < .001

Post hoc pairwise comparisons were conducted using a Wilcoxon Signed Rank test and a Bonferroni adjusted α of .17 indicated that the post program severity of offences (Mean Rank = 1.97) was significantly lower than the pre-program severity of offences (Mean Rank = 2.46), T = 311, z = -4.51 (corrected for ties), N – Ties = 60, p < .001. This effect can be described as “large”, r = .82. [6.130] 119

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Post program severity of offences (Mean Rank = 1.97) was significantly higher than the during program severity of offences (Mean Rank = 1.57), T = 255, z = -3.18 (corrected for ties), N – Ties = 46, p < .01. This effect can be described as “large”, r = .47. During program severity of offences (Mean Rank = 1.57) was significantly lower than the pre-program severity of offences (Mean Rank = 2.46), T = 78.50, z = -6.66 (corrected for ties), N – Ties = 66, p < .01. This effect can be described as “large”, r = .58.

Predictors of post-program recidivism [6.140] A one-way discriminant function analysis was conducted to predict whether a participant was a recidivist or not within 24 months of program completion (refer to Table 16 for a summary of results). Predictor variables were program completion, gender, age, number of days as a program participant and prior program offence severity. Significant mean differences (p < .05) were observed for program completion and gender on the dependent variable. While the log determinants were quite similar, Box’s M indicated that the assumption of equality of covariance matrices was violated. However, given the sample size, this problem is not regarded as serious. The discriminant function (Canonical Correlation) revealed an association between groups and the predictor variables, accounting for 15% of between group variability, although analysis of the structure matrix (Discriminant Loading) revealed only three significant predictors, namely program completion (-.66), gender (.60), and prior-program offence severity (.39) with age and number of days as program participant poor predictors (less than .30). Table 16 Summary of interpretive measures for discriminant function analysis Independent Variable

Program Completion Gender Age Number of Days As Program Participant Pre Program Offence Severity Group Centroid Recidivist Group Centroid Non Recidivist Wilks Lambda Canonical Correlation Note *p < .05, **p < .01.

120 [6.140]

Unstandardised

Standardised

-2.020 1.045 0.002 0.004 0.358 .351 -.483 .852* .384

Univariate F Ratio

-.830 .467 .022 .479

Discriminant Loading -.663 .603 -.186 .062

.362

.393

2.489

7.082** 5.870* 0.558 0.062

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The original classification (as seen in Table 17 below) showed that overall 68.4% were correctly classified, while the cross-validated classification showed that overall 65.3% were correctly classified. Table 17 Discriminant function analysis clarification results Predicted Group Membership Group Number of Cases Original Group Recidivist 55 Non Recidivist 40

Recidivist

Non Recidivist

43(78.2%) 18 (45%)

12 (21.8%) 22 (55%)

Cross-Validated Group* Recidivist Non Recidivist

40 (72.7%) 18 (45%)

15 (27.3%) 22 (55%)

55 40

Note *In cross validation, each case is classified by the function derived from all cases other than that case. Percentage of Original Group cases correctly classified: 68.4% (65/95). Percentage of Cross-Validated Group cases correctly classified: 65.3% (62/95). Numbers in italics indicate the row percentages.

DISCUSSION [6.150] Burns et al (2013) identify the major public policy question that concerns the study and evaluation of mental health courts and specialist court lists. Do they improve the functioning of offenders with mental illnesses so as to reduce criminal recidivism and protect public safety? This study builds on the work conducted by Lim and Day (2014) and other existing Australian and international evaluations, by determining the different outcomes for the participants of the ARC List Program within the Magistrates’ Court of Victoria. The results of this study show that successful program completion was the most significant predictor of non-re-offending or a longer time to re-offending, followed by gender and pre-program offence severity. Age and number of days as a participant in the List were poor predictors. The former finding contrasts with findings in relation to criminal recidivism generally. This may reflect differences in the relevance of age to crimes associated with mental illness, as compared with its relevance to other crimes. Mental illness appears to be less strongly related to age than to criminal behaviour generally; consistent with this is the fact that the average age of members of the sample seems to be considerably greater than that of other Magistrates’ Court defendants. Alternatively, the irrelevance of age may simply reflect the fact that the sample was selected on the basis of assessments that participants would be likely to benefit from the program. The poor predictive power of days on the list may reflect the ambiguous implications of this variable: on one hand, high scores mean more exposure to treatment; on the other they may reflect greater need for treatment. [6.150] 121

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Furthermore, there was a significant difference in the time to re-offending between the two target groups, ARC List program completers and ARC List program non-completers. For the individuals who did re-offend, there was a significant difference in the seriousness of offending; the post program severity of offences was lower than the pre-program severity of offences. Peri program severity of offending was also significantly lower than post program severity of offending, perhaps indicating the importance of judicial monitoring and contact with program staff during the ARC List Program. 14 This is consistent with the results of a study conducted in 2013 by Burns et al (2013) who found that, completing the mental health court program has a negative association with recidivism two years after leaving the program. The authors also pointed to the importance of judicial monitoring and follow-up case conferencing. Interestingly, the authors of this study came to the same conclusion as the current study; that mental health court/ARC List participants, in order to avert future recidivism, require a form of follow-up or after care when the supervision, structure, treatment, case management and social support of these specialist court programs cease. 15 Kaplan-Meier (1958) analysis of survival was conducted to determine the survival function of the two groups. It was found that the average time to the first proven offence post program for program completers was 21.87 months and that this was longer than those participants who failed to complete the program, whose time to re-offending was 4.87 months. The results of this study indicate that those who complete the ARC List Program have a lower chance of re-offending than those who did not complete the program. Furthermore, for those individuals who did re-offend, their post program offence type was less serious than their pre-program offending behaviours. These results are consistent with the hypothesis that the program has been effective, but in some respects, they may also be the product of methodology and of variables correlated with both recidivism and program participation. For instance, while the rate of peri-program recidivism was low, this could have occurred for a number of reasons, including increased judicial supervision or it may be because people in the program are at risk for a shorter period of time than they are during the two-year pre and post-program periods. However, this would not explain why the relevant recidivism level during the peri-program period is as low as it is. Another complication relates to causation. While correlation between program completion and low recidivism may reflect the impact of the program, it may also reflect the fact that those who are sufficiently self-disciplined to complete the 14

15

However, it should be noted that the peri-offending period may be considerably shorter than the comparison pre or post program markers. Therefore, these results may be reduced in their practical significance. Furthermore, if an ARC List participant offends while on the List their matters may be consolidated into the ARC List to be determined at the same time as the original offence/offences for which they were referred. This would not register on court systems as recidivist behaviour.

Burns et al, 2013. This is supported by the incidence of recidivism behaviour post-program completion.

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program may also be sufficiently self-disciplined to be able to resist the temptations of crime. However, their participation in the program indicates that they had nonetheless been involved in crime in the past, which suggests that there had been limits to their capacity to exercise self-constraint in the past. As with many other mental health courts and specialist mental health court lists, the current study’s List initially limited enrolees to those with lower-level or summary offences and then expanded it to include persons charged with more serious offences, including sexual offending behaviours. 16 This change was made largely due to the change of government and the need within the jurisdiction to increase access to the ARC List program for mentally ill offenders. These developments constitute a diluted form of the progress that many other mental health courts throughout the western world have adopted. For example, the Hall County Mental Health Court in the State of Georgia, in the United States of America, increased and shifted the focus of its mental health court to target high-risk offenders who had a co-morbid diagnosis of severe mental illness and substance abuse disorders. This court also assembled more resources and created a more structured program that increased the involvement of the court in therapeutic intervention in a number of ways, such as increased drug testing, as well as frequent use of in-house therapy groups, which significantly reduced the court’s reliance on external service providers. 17 Similar sorts of changes could be effected in Victoria, and preliminary results from Burns et al (2013) indicate that this sort of intensive approach is effective at reducing recidivism, although the authors acknowledge that more research is required to validate these results. Ultimately, the current study found that the ARC List appears to be effective (at statistically significant levels) at reducing recidivism and for those participants who did recidivate, the severity of the post ARC List offending had decreased.

STUDY LIMITATIONS [6.160] It is well-known that a number of methodological limitations exist in the various mental health court studies. 18 This section of the book considers the relevant ethical issues related to such projects, as well as the advantages and disadvantages of particular research methodologies.

Limitations of using court data [6.170] Payne (2007) identified some general limitations that can be found when using court data, which relies solely on measures that include appearances or convictions in court. Court data represent offences that the police sought to prosecute and convictions are those offences for which an offender pleaded guilty or was proven guilty by the trier of fact. This form of data does not 16 17 18

Burns et al, 2013; Redlich et al, 2005; Griffin, Steadman & Petrila, 2002. Burns et al, 2013. Lim & Day, 2014; Sarteschi et al, 2011. [6.170] 123

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include all offences that were dropped or dismissed through the court process, or during plea negotiations. 19 It may not therefore, be truly representative of the offending behaviours of the relevant cohort. However, even if this is the case, it is not clear how this would explain the relationships reported above. Indeed, one would expect it to have the effect of blurring “true” relationships between program participants and the seriousness of subsequent offence. There are also limitations identified concerning the use of recidivism data. Payne (2007) points to the fact that defining what is going to be treated as re-offending can often give rise to definitional issues in studies. It is important to be aware of the type of re-offending chosen as an indicator of recidivism; that is, the unit of measurement selected to count the indicator event. For example, will the study aggregate offences occurring at the same time on the same day or will they be counted separately? Payne’s (2007) contention is supported by Ramirez, Andretta, Barnes and Woodland (2015), who stress the importance of considering definitions of recidivist behaviour prior to selecting measures. In light of this possible limitation, this current study chose to include the number of charges, irrespective of the time or location that they occurred as a measure for recidivism. Furthermore, the researcher was only granted access to data from the Melbourne Magistrates’ Court databases. Therefore, data on more serious indictable offending behaviours that fell within the jurisdiction of the County or Supreme Courts of Victoria was not able to accessed and included in this study. Payne (2007) points to other limitations of using court appearance data as recidivism data. One such example is the creation of two possible proxy recidivism measures that can occur after the offender has been arrested and charged and relate to the offender’s mandated appearance in court. These appearances are as a result of a comprehensive investigation and approval from the Office of Public Prosecutions. More often than not, the offender chooses to plead guilty and then it becomes the court’s responsibility to decide whether or not to record a conviction and what sanction, if any, ought to be imposed. Court databases contain chronological information on the progress of the criminal matter as it passes from police apprehension into the court processes. Another potential issue is the timeframe that the study assesses; it is necessary to limit the number of years that recidivism is monitored for, with regard to each offender. Due to the length of time it takes for charges to make it into the court system, the selected time frame will exclude some offences committed within the relevant time period. This means that post-program recidivism rates are likely to be underestimated. However, this does not invalidate the findings in relation to the relationship between program completion and recidivism. It will mean that peri-program recidivism rates will be inflated by the fact that pre-program offences will sometimes result in peri-program convictions, and that some post-program convictions will have their origins in pre-program or pre-program completion offences. Moreover, since the likelihood that a person will re-offend 19

Payne, 2007.

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becomes smaller as the period since their last offence increases, the effect of discounting offences which have not been the subject of a conviction is less serious than it would otherwise be. A further limitation that may have skewed the results of this study relates to the fact that no normative group was used. It was not possible to have a control group for comparison of offending behaviours to gauge the level of re-offending after the ARC List program intervention, as this would mean denying access to the List to eligible participants. Re-offending comparisons were done against the individual’s own offending history. Finally, the current study is only of a single site, so it was not possible to compare measures such as specific program components or organisational procedures such as procedural justice, 20 reintegrative shaming 21 and the impact of court staff. 22 Thus the findings of this study are again limited in their generalisability. In summation, the universal aim of any mental health court is to reduce recidivism rates by providing offenders diagnosed with a mental illness an alternative to the mainstream criminal justice system. 23 Evaluations have differed in their procedures and results and this has negatively affected the utility of published results. This study has contributed to the literature on this issue by describing the operation of the ARC List within the Melbourne Magistrates’ Court and by demonstrating that it is effective, at statistically significant levels, at addressing recidivism. This study, despite its limitations, contributed to the accumulating evidence from numerous other single and multi-site studies, in supporting the hypothesis that the interventions of specialist mental health courts and lists are effective at reducing criminal recidivism. Furthermore, this study confirms that where there is re-offending behaviour, there is a clear reduction in the severity of re-offending in comparison to offending behaviours that were pre-intervention. It is clear that the ARC List is a successful diversionary program for offenders diagnosed with a mental illness in Victoria. The results suggest that there are a number of opportunities for improvement, particularly in the post program follow-up and care for successful program completers.

20 21 22 23

Wales et al 2010. Peters & Oshers, 2004. Castellano, 2011a. Wexler & Winick, 1991. [6.170] 125

CHAPTER 7 Recommendations and Conclusions [7.10] [7.20] [7.140] [7.150] [7.160]

Introduction ............................................................................................... 127 The essential elements of a mental health court ................................ 128 Recommendations .................................................................................... 132 Areas for further research....................................................................... 133 Final reflections......................................................................................... 134

INTRODUCTION [7.10] This study has sought to assess the efficacy of the ARC List that operates out of the Magistrates’ Court of Victoria. The primary research question that was addressed related to whether and to what extent the ARC List has been effective at reducing recidivism. Problem-solving court processes are a contentious topic of debate among both supporters and critics of therapeutic jurisprudence. This book addresses some of these issues. Although the List appeared to be effective in the current study, it must continue to evolve in order to prove even more effective. This study argues that there is an inherent need to balance traditional legal principles of open justice, procedural justice, precedent, judicial objectivity and neutral arbitration with new innovative ways of interacting with offenders and utilising therapeutic options for sentencing (this is in line with the findings of Graham, 2007). This research provided a unique opportunity to research the creation and operation of the List, in order to comment on its effectiveness and to offer some suggestions for the improvement of the ARC List. There was a noticeable variation between the views of particular groups of stakeholders. For example, those stakeholders who were instrumental in the development of the List were far more confident about the effectiveness of the List and had difficulty conceptualising any issues that the List is currently facing or could be facing in the future. It seemed that the progenitors of the List had an idealistic view of the ARC program as it should run. However, it was clear that there were a number of issues that these creators failed to consider that became practical issues for current List staff. One such issue that was consistently raised was the lack of appropriate staffing levels, particularly within the clinical team which was described as “running on the smell of a wet oil rag”. The level of under-staffing could lead to high clinical staff turnover, which disrupts the operation of the List and undermines one of the main features of stability for List participants: constant court staff. Another issue that was mentioned frequently was the need to gain ongoing funding. The ARC List has been funded so far by a series of short-term grants [7.10] 127

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from the State Government. This means that within a three-year cycle, ARC staff must prepare a budget bid with an external evaluation agency, whose evaluation they will never see due to the fact that the report is “Cabinet in Confidence”. It is true that the ARC List has been re-funded on each occasion but the funding levels have not increased. This means that staffing levels have not been able to be increased and that there has not been an opportunity to extend the List to more courts throughout Victoria. The main focus on these external studies is to identify the cost effectiveness of the List. Anecdotally the researcher has heard from key stakeholders that these evaluations deem the ARC List to be cost effective. However, there are no reliable figures that are available to the public. This makes any repeat evaluation conducted by the court very difficult, as the court is unaware of the figures and measures used to calculate cost effectiveness in the external studies. In terms of the impact of the ARC List on the participants themselves the process of empowerment was mentioned frequently. That is, workers within the List actively seek to empower the ARC List participant to take responsibility for their own actions, behaviour and consequences. It is clear that the ARC List focuses on turning the participant from a passive receiver of “judgment” in a courtroom to an integral part of the process, where their views are listened to by learned and interested figures, including the magistrate. This research found that the ARC List was able to identify and respond to some of the underlying factors that contribute to the offending behaviour of individuals who have a mental impairment. The ARC List has successfully increased the options that are available to the court when responding to accused persons who have a mental impairment. These include special powers to adjourn or to dismiss charges where appropriate. One of the most significant roles of the ARC List has been to direct participants, where appropriate, to therapeutic rather than corrective pathways. The ARC team worked to improve the access of ARC List participants to appropriate treatment and other support services. It was found that this approach was effective at reducing recidivism and linking participants to relevant services (as evidenced by lower recidivism rates). Thompson et al (2008) have identified ten essential attributes of an effective mental health court. These were listed in Chapter 3 (at [3.80]). The following section of the book, will assess the degree to which the ARC List has satisfied these standards, drawing on the legislation, survey results and the quantitative analysis.

THE ESSENTIAL ELEMENTS OF A MENTAL HEALTH COURT [7.20] The essential elements of a mental health court are as follows.

1. Planning and administration [7.30] The ARC List planning process was informed, elaborate and included the viewpoints of numerous stakeholders. ARC is guided by the program logic map 128 [7.20]

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| CH 7

that it created four years ago and is mindful of the short, medium and long-term goals that were identified in the creation of the ARC List. An ARC evaluation group was established to guide the researcher while undertaking this project. The ARC team consists of a broad group of relevant stakeholders, including representatives from the government, the health sector, the legal profession and the judiciary. Although there are busy schedules and the key staff are housed in different physical locations, members of the group are able to meet for discussion and planning. These discussions could be enhanced by contributions from community and consumer representatives. While ARC does this informally, a formal role for the consumer may be of use, as the ARC List needs to be kept up to date with the needs of the consumer to maximise its effectiveness.

2. Target population [7.40] Legislative amendments occurred to the ARC List eligibility criteria in 2013 (see Chapter 5). These permitted the List to accept participants who had committed summarily triable indictable offences, including sexual offending. The surveys indicated that there was some difference in the perspectives of the key stakeholders on this issue. There was disagreement surrounding this increase, with some key stakeholders indicating that this exceeded the capabilities of the experts working within the List, while others were concerned about the capacity of the ARC List to take on any extra offence types, irrespective of what offences they were.

3. Timely participant identification and linkage to services [7.50] The ARC List has a steady stream of referrals from a variety of sources within the community and stakeholder groups. However, the real issue for the ARC List is what to do with those referrals. The ARC List makes public the fact that it has a short waiting list of up to four weeks, but stakeholders indicated that this has recently blown out to between six and eight weeks. When participants are in a time of crisis, any wait has the potential to have a negative impact on their lives. In this sense, the triage capacity of the ARC List should be widened, so as to link participants with services as soon as possible. One possible solution, which was discussed by ARC List staff, was the merger of ARC resources with the Court Integrated Services Program personnel. This merger is good in theory but the expertise and skill levels of the different clinicians and the aims/purposes of each project are different. Such a merger should be carefully considered and extensive consultation should be done prior to this move. Furthermore, although the majority of ARC participants are already known to and engaged with some sort of service, convincing services to engage with the ARC List was a process that key stakeholders report took a considerable time. Sourcing relevant services for the ARC List participants was identified as being extremely difficult at time; however, it was acknowledged that this became easier as time went on. There is one exception to this, disability service provision. More needs to be done in order to enhance the relationship between these services and ARC to better assist ARC List participants. [7.50] 129

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4. Terms of participation [7.60] ARC clinicians engage in lengthy discussions with potential ARC List participants prior to their entry into the ARC List about the parameters of engagement with the List. The ARC team does this well, and if at any stage the participant decides that the ARC List process no longer suits them, they are able to have their case remitted to the mainstream courts for processing without any undue penalty.

5. Informed choice [7.70] ARC clinicians are highly skilled at ensuring that participants are aware of what the ARC List entails, as well as emphasising its voluntary nature. Part of the role of the ARC clinician is to obtain informed consent; this involves an analysis of the ability of the participant to give consent. All ARC court personnel understand that capacity is a fluid concept and constantly monitor the participant’s ability to consent. This is particularly relevant due to the very nature of the needs of the participants that the List serves.

6. Treatment supports and services [7.80] There is room for some development to increase the availability and capacity of treatment and services in Victoria, as noted in the literature reviewed earlier. The sustained success of the ARC List is a broad social process that will require multidisciplinary support and effort over an extended period of time to ensure the ARC List’s continued success.

7. Confidentiality [7.90] Confidentiality is maintained in a number of ways in ARC, through constant monitoring and due care which culminates in the appropriate protection of participant privacy rights. One manifestation of this may be the reluctance of programs to give examples of case studies where the program worked well or badly. There does not appear to be any issue in this area.

8. Court team [7.100] The court team is one of the most significant assets of the ARC List. It would be advantageous for the Magistrates’ Court of Victoria to provide further opportunities for professional development in the area of therapeutic jurisprudence so that the court team is aware of the current research on this issue. Furthermore, ARC List staff expressed concerned with the lack of appropriate resourcing, which ultimately resulted in a high turn-over of clinical team personnel. It is recommended that the ARC List be given extra resources to address these issues.

9. Monitoring adherence to court requirements [7.110] The relevant parties within the ARC List including the practitioners and ARC clinicians and liaisons, are well informed about the adherence or 130 [7.60]

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non-compliance of ARC List participants. Modification of treatment plans or decisions has occurred where necessary.

10. Sustainability [7.120] This is perhaps the most significant challenge, but arguably a most worthy undertaking, to ensure the sustainability of the ARC List. Currently, the ARC List has received funding for a further period of four years, which is akin to ongoing funding in the current political climate. However, the budget for this List has not been increased since its commencement. This, of itself, is not sustainable and does not reflect an appropriate monetary response to addressing this need within the community. Flexible development and ongoing monitoring of key areas such as those listed in this book and elsewhere in other mental health court evaluative literature will contribute to the enhancement of the capacity and court processes used within the ARC List.

Where to from here? [7.130] Therapeutic jurisprudence and problem-solving court initiatives are considered innovative, in that they creatively blend together facets in the court process, sentencing and criminal justice system that may already have existed but needed development; using these elements in new ways leads to achieving better results. However, this process ought never to be stagnant. Deputy Chief Magistrate Jelena Popovic, an ARC List Magistrate, offered the following caution and counsel in her 2006 paper: Judicial practitioners of therapeutic jurisprudence still have some way to go in ascertaining the appropriate parameters of court processes. We must strive to ensure that we are not trampling over the rights of court users while maintaining a flexibility and practicality that have been lacking in traditional court processes. We must ensure that our processes are beyond reproach and that the processes we adopt cannot be criticised by those who don’t (or don’t wish to) understand our rationale … The experience we gain with problem-solving approaches continues to evolve. It is timely that we revisit some of the processes we have implemented and taken for granted as being necessary to give effect to the practice of therapeutic jurisprudence. 1

In light of the suggestions made by Popovic (2006) and the evaluation presented in Chapter 7 of this book, the following recommendations are advocated by the researcher. They are not listed or ranked in order of importance or urgency; instead each recommendation is stand-alone where no recommendation is more important than the other.

1

Popovic, 2006 p 76. [7.130] 131

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RECOMMENDATIONS [7.140] Recommendations are as follows: 1.

It is recommended that significant consideration be given to extending the operation of the ARC List on an ongoing basis. The ARC List has been granted an extension until 2019; however, in order to achieve expansion of the ARC List, it requires permanency. The current research demonstrates that the List successfully engages with mentally ill offenders to reduce recidivism, which has positive impacts for all groups of stakeholders in society including the courts, emergency services, government and non-government organisations and the community at large. Allowing the ARC List to continue on an ongoing basis will enable more data collection and evaluation about its effectiveness, which will bolster informative contribution towards the literature in this area. This would also enable the courts to take into account the accumulated expertise of judicial and other officers associated with the court.

2.

It is recommended that resources be extended to allow the ARC List to expand its operation. Key stakeholders expressed a concern about the equity of “postcode” justice and suggest that the List could be successfully rolled out across the State of Victoria.

3.

It is recommended that further thought and consideration be given to the victims. There was a focus on the offender and treating their illness but very few practitioners discussed the impact that the ARC List has on the victim. Without further education about the purpose of the List, victims may misunderstand the informal setting and lesser sanction as failure of the court to take the crime seriously, in effect potentially ignoring or condoning the crime. This could be achieved in a number of ways, which include community education about the ARC List or by creating resources specifically targeted for victims.

4.

It is recommended that there be a strengthening of centralised and coordinated data collection. In the ARC List, data is collected by a Program Analyst, however, data sets are often incomplete with missing data. Future evaluation research focusing on effectiveness and efficiency, including concrete outcomes as measures of success, cannot be conducted without complete data from numerous sources on a number of topics. This could be achieved by increasing the amount of time that is spent by the ARC clinician with the participant, so that they feel that they have enough time to complete the full questionnaire. Further training on the importance of having complete data sets is also required.

5.

It is recommended that the ARC List engage in discussion about the eligibility criteria for the List, specifically whether it will or will not encompass individuals with a diagnosis of a personality disorder. Currently, participants with a sole diagnosis of personality disorder are not eligible for participation in the List. However, the List has many participants diagnosed with personality disorders on their books. This is due to the fact that personality disorders often occur co-morbidly. It is recommended that these anomalies be remedied either by broadening the eligibility criteria and then providing specialist training to deal with offenders diagnosed with this type of disorder or to remove these participants from the List. The treatment of personality disorder is an extremely specialised field and plans need to be individualised to suit the unique and demanding needs of a person diagnosed with a personality disorder, as distinct from a mental illness.

6.

It is recommended that the ARC List remain as a specialist list/court diversion program of the Magistrates’ Court. There is no current foreseeable need for

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development into a Mental Health Court like the one that is established in Queensland and other jurisdictions internationally. This is largely due to the fact that the Queensland model is closer to a traditional court where there is less focus on problem-solving and more focus on making the “right” decision.

7.

It is recommended that an individual professional or representative of a relevant organisation adopt a formal role in the capacity of advocate on behalf of mentally ill defendants in consultations and planning for the ARC List. This suggestion is in line with the recommendation made by Graham (2007). This person would serve the capacity of advocacy and represent of the perspective and interests of the mental health consumers that participate in the ARC List.

8.

It is recommended that regular meetings between key stakeholders within the ARC List should be carried out. These forums would seek to facilitate informative education, consultation and feedback between key stakeholders in the ARC List. This should involve representatives from key groups who work within the ARC List, including lawyers, magistrates, court staff, mental health services case managers or support workers, treatment or rehabilitation providers, community social workers, consulting private psychologists or psychiatrists, medical practitioners, Victoria Police staff, prosecution and consumer advocates.

9.

It is recommended that the ARC List engage in community education campaigns that target specific areas within the community, such as the legal profession or health practitioners, as well as the general public.

10.

It is recommended that further empirical research is conducted on the efficacy of the ARC List and that this research is published in peer reviewed journals. It is not enough to say that the ARC List is working, it is far better to understand why and what makes ARC effective. It is anticipated that the current study goes some way towards achieving this goal.

11.

Finally, it is recommended that the court reassess its post List procedures. This study found evidence suggesting that there may be a higher risk of recidivism following completion of the program than during the program. One of the key stakeholders suggested ongoing judicial monitoring as a possible solution to this issue. Instead of immediately discharging the ARC List participant, their appearances before the court could be “weaned away”, for example, with a consultation every six months for one year and then yearly meetings with the magistrate for the next two years. The stakeholder suggested that, as a preventative measure, this would curb recidivism and encourage the continued progress of the ARC participant. Further research needs to be conducted into the impact of judicial monitoring and the efficacy of such an approach should be tested and considered before implementation. What is clear is that something ought to be done to discourage ARC List participants from re-offending post ARC List completion.

AREAS FOR FURTHER RESEARCH [7.150] The following section highlights areas that, after further consideration, would provide interesting avenues for future research. In line with the suggestions given by Graham (2007) and Steadman (2005), the ARC List team needs to give careful consideration to the planning and long-term data collection [7.150] 133

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in five key areas: participants, treatment services, diversion, criminal justice outcomes, and mental health outcomes. 2 It is suggested that future researchers consider evaluative analysis in the following areas: 1.

Longitudinal study: The collection of data to form the basis for a longitudinal study of the effectiveness of the ARC List that can assess, inter alia, the long term recidivism habits of ARC List participants.

2.

Participant interviews: Conduct extensive interviews with accused persons that are participating in the ARC List, in order to analyse perceptions of procedural justice, personal progress and treatment outcomes. The results of such a study could be used to inform further changes in ARC List processes and procedures. There may be some difficulty in obtaining ethics approval for such interviews, as ARC participants are a vulnerable group within society.

3.

Control group comparison: In line with the suggestion posited by Graham (2007), it is recommended that future research should conduct a comparative analysis between the therapeutic approach of the ARC List and the traditional approach used in a general list within the Magistrates’ Court of Victoria. An avenue to pursue this research may come from tracking the progress of individuals who choose (for whatever reason) to drop out of the ARC List, with those with similar characteristics (diagnosis, personal characteristics and offence type) from the ARC List cohort. This would provide an opportunity to obtain comparison data from a control group, from which the progress of ARC List participants can be gauged.

4.

Judicial monitoring: The full impact of judicial monitoring is yet to be realised in the literature. This is an area that has been flagged in the key stakeholder interviews as an avenue for future research but as of yet, this has not been studied in the context of a problem-solving court model with any degree of clarity. Several key stakeholders in the ARC List have indicated that this should be pursued, including the magistrates themselves.

5.

Links between treatment plan, diagnosis and success in the ARC List: An area of further research that would provide an interesting aspect would be to assess the degree to which diagnosis and treatment choices (for example types of therapy) are linked with program success.

FINAL REFLECTIONS [7.160] It is clear that social processes discussed in Chapter 2 have given rise to complex issues such as deinstitutionalisation and transinstitutionalisation and that these phenomena have paved the way for the increase of mentally ill offenders cycling through the criminal justice system. Problem-solving courts based on therapeutic jurisprudence models provide innovative solutions to this issue that bring together existing tools of both legal and health institutions to address the needs of complex groups of people in a more appropriate and humane way. The ARC List is one such example of a solution. This study found that the ARC List within the Magistrates’ Court of Victoria is successful at reducing recidivist behaviours in its participants. Furthermore, this study found that where participants do re-offend, the ARC List intervention 2

Graham, 2007; Steadman, 2005.

134 [7.160]

Recommendations and Conclusions

| CH 7

succeeds in reducing the severity of their offending. It is clear that ARC is achieving most of its goals; however the ARC List process must remain responsive to the needs of both the court and the participant. Further evaluation on the efficacy and operation of the ARC List is needed and the recommendations of this book provide direction in this regard. The ARC List is working towards achieving its goals and aims by using problem-solving as a successful component of therapeutic jurisprudence. The positive results from this study, the enthusiasm and hope conveyed by the key stakeholders and the collaboration used thus far in the ARC List, all suggest that some important progress has already been made. What is clear is that the use of therapeutic interventions to achieve better outcomes within the Victorian criminal justice system for offenders diagnosed with a mental illness is a much needed and welcome development in the Victorian legal landscape. The ARC List embodies great capacity and promising potential for the future of Victoria’s criminal justice system, one that seeks to recognise the importance of a therapeutic approach to jurisprudence.

[7.160] 135

Appendix One CASE STUDY 1 1 [App 1.CS1] A magistrate referred a 37-year-old male client to the ARC List with concerns regarding an untreated mental illness, substance misuse, accommodation difficulties and limited social supports. A Court Integrated Support Program (CISP) case manager completed an initial assessment with the client and an ARC List clinical advisor undertook a clinical assessment with him. Working in conjunction with the ARC List clinical advisor, the Court Integrated Support Program case manager worked with the client for four months (the usual length of time for a Court Integrated Support Program episode) and during this time linked the client to drug and alcohol counselling, accommodation and employment options. The client continued with the ARC List after being discharged from the Court Integrated Support Program. The ARC List assessment identified that the client had bipolar disorder and co-occurring Post Traumatic Stress Disorder (PTSD) and poly-substance dependence. The client possessed a limited understanding of the factors associated with his long history of shop-theft and his history of failing to comply with court sanctions. The ARC List clinical advisor liaised with the client’s general practitioner regarding his non-compliance with medication and abuse of benzodiazepines. As a result of this, a referral to a psychologist was initiated to treat the symptoms associated with PTSD. As part of a ″Staying Well Plan″, the clinical advisor provided the client with psycho-education regarding the management of his mood disorder to improve his compliance with medication and to enhance his psychosocial functioning. As part of this plan, the client engaged in volunteer work, regular physical activity and practised strategies to improve his family relationships. As the client’s mood stabilised (and medication compliance improved), the temptation to abuse benzodiazepines lessened. The client reported an increase in his self-confidence and sense of managing his mental health. The client’s gains were acknowledged in his progress hearings by those who work with the ARC List, including by the magistrate, Victoria Legal Aid legal representative, police prosecutor and the clinical advisor. This further buoyed the client’s confidence and motivation. After developing an understanding of the links between his substance use, anti-social peers and offending behaviour, the client made a decision to engage 1

Extracted from the Magistrates’ Court of Victoria’s Annual Report for the period 2010–2011. [App 1.CS1] 137

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with more pro-social supports. This led to him joining a bushwalking club, applying for tertiary study and increasing contact with his siblings. Throughout his involvement in the ARC List, the client did experience some difficulties, including a brief reoccurrence of a hypomanic episode, difficulties associated with his accommodation and exposure to a traumatic event that temporarily increased the severity of his trauma symptomatology. To his credit, the client was able to navigate these difficulties with prompt intervention from his community supports and ARC List staff. At sentencing, the client’s participation and progress in addressing his circumstances will be considered. The client will be visiting his mother for the first time in a number of years and is scheduled to complete an overnight bushwalking trek in New South Wales.

CASE STUDY 2 2 [App 1.CS2] A 22-year-old woman was referred to the ARC List by her Court Integrated Services Program case manager. The participant had originally been referred to the Court Integrated Support Program by a magistrate. Her current offences included aggravated burglary, theft and attempt to obtain property by deception. Court Integrated Support Program completed an assessment on the participant, which identified the following areas of need: • Acquired Brain Injury (ABI) risk factors; • alcohol abuse; • grief and loss; and • problem gambling. The participant was assessed by Court Integrated Support Program as requiring intensive case management and as a possible participant in the ARC List. The participant’s parents separated when she was young. She described her upbringing as often consisting of alcohol-fuelled domestic violence. She was “kicked out” of home at age 14 by her mother, after which she spent nine months living on the street. She had a significant history of poly-substance dependence, which included the use of crystal methamphetamine (ICE), amphetamines (speed), ecstasy and alcohol. Her alcohol consumption was daily, with illicit drug use every second day. She also spent $200 on electronic gaming machines three times a week. The participant was referred for a comprehensive drug and alcohol assessment, which she completed. Drug and alcohol counselling was recommended and she was successfully linked with a drug and alcohol counsellor. 2

Extracted from the Magistrates’ Court of Victoria’s Annual Report for the period 2011–2012.

138 [App 1.CS2]

Appendix One

After disclosing a number of head injuries, loss of consciousness and a history of poly-substance use since the age of 14, an ABI screening assessment was completed, followed by a referral for a neuropsychologist assessment. As a result of the assessment, she was diagnosed with an acquired brain injury of a mild to moderate nature. The participant was also referred to a Gambling Help service; however, after one attendance, she chose not to access this service. She was also referred for housing support. The participant was accepted into the List and an Individual Support Plan (ISP) was developed, which included the following goals: • developing an increased self-understanding of the reasons underpinning and triggering her offending behaviour;

• • • • • •

continuing with drug and alcohol counselling; attending an anger management course; gaining an understanding of the impact of her ABI; engaging in a mental health care plan; commencement of vocational training; and gaining casual employment.

The participant’s ISP was reviewed and rewritten during her time on the List in order to recognise her changing circumstances, including work commitments, but also to break her goals into more specific steps. During her time on the List, the participant continued with her drug and alcohol counselling. At the completion of the ARC List, she was abstinent from drug and alcohol use. The participant engaged in the development of a mental health care plan with her general practitioner, who then medically managed her mental health issues. She was prescribed a low dose anti-depressant and attended regular counselling where both her gambling and anger management issues were addressed. The participant fulfilled a long-standing ambition to work in hospitality and commenced a Certificate II in Hospitality. She also gained part-time employment in this field. The participant was very positive about her involvement with the court support programs and the significant improvements she made while in the ARC List. During her time on the List, the participant did not re-offend. The participant’s matters were finalised in the ARC List and she received an adjournment with an undertaking for a period of 12 months on all charges, as well as being required to pay a monetary amount to the court fund.

[App 1.CS2] 139

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CASE STUDY 3 3 [App 1.CS3] The client had significant charges and a long prior criminal history including burglaries, thefts, driving matters, begging, property offences, drug possession, commencing with a care application for him in the early 1970s. He was sentenced to 12 months in a youth training centre a few years after that. His history was all too common. As a child, he was exposed to significant family violence in his home and was injured protecting his mother. He was a heavy drinker and heroin user by the time he was 20. As he aged, his offending diminished in style, but not frequency. He had spent long periods in custody. He had four children, all under the care of the Department of Human Services (DHS). His long-term partner died of a drug overdose some years before. He had a significant history of depression, lack of support or counselling for grief and loss. He was diagnosed with severe anxiety. He continued to use heroin spasmodically when charged and referred to the ARC List by a magistrate. He was party to matters in the Children’s Court attempting to see, and desperately wanting to support, his children. They are indigenous. Over the period of involvement in ARC, the client became compliant on methadone, reducing to very modest levels. He accepted treatment for depression and anxiety. He obtained housing (he had also often been sleeping rough) and had to accept housing in a country region. He was determined to stay on the List and travelled each month to the hearing day. His hearing time was set later in the day so he could make the train connections. Saving for the train fare, and walking an hour to the station from his home to meet the connections became part of his goals. He saved for, maintained a mobile phone, and was in regular phone contact with the clinician. He did not re-offend at all. Local country psychological services were arranged, one of the most challenging things to achieve. He became a very compliant and resourceful member of the List. The client was encouraged to consider providing copies of his progress reports to the Children’s Court with the magistrate’s consent. He became engaged in social activities, arranged connections with and maintained the support of a local aboriginal co-operative to assist his relationship with DHS and the children. Ultimately, through the decision of the Children’s Court, his son is now living with him, and he is having regular contact with his daughter, who has a range of complex circumstances herself. The Children’s Court magistrate who dealt with these matters approached me recently to acknowledge the client’s wonderful progress on the ARC List and how critical it seemed to have been in ensuring he had a stable life, and enabling him to now undertake such an important parenting role with his own children.

3

Extracted from the Magistrates’ Court of Victoria’s Annual Report for the period 2012–2013.

140 [App 1.CS3]

Appendix Two REFLECTION ON THE ARC LIST BY MAGISTRATE ANNE GOLDSBROUGH [App 2] The following reflection on the List was provided by ARC List Magistrate Anne Goldsborough and provides an interesting insight into the perspective of the judiciary on the operation of the ARC List. It was extracted from the Magistrates’ Court of Victoria Annual Report for the period 2012–2013. The judicial work in the ARC List is some of the most challenging, confronting, yet rewarding work I have encountered in my 17 years as a magistrate. Whilst overseeing an accused prior to sentence, it is immensely satisfying to see the return of hope, the development of insight, acceptance of personal challenges or limitations and often the acceptance of the reality of a mental health diagnosis. In the majority of participants, I see trust and a sense of self-worth return or develop. Many who appear in our courts have had few people engage with them at this level. I have been regularly impressed at the level of engagement of participants in this List, and their determination to meet my expectations. Each month the participant (the accused person) must return to court to discuss progress and setbacks, to find motivation, to accept judicial oversight, meet with medical practitioners, confront their own fears and importantly, not re-offend. To meet small or large goals, all relative to their personal circumstances of course. Critically, they must always be accountable to the court, to me as the presiding magistrate, and to the ARC clinicians. Many of our ARC participants are also parents. Some remain connected with their own parents or another relative. Many relatives also attend the ARC hearings each month. Sadly, some participants have little or no contact with their children usually due to their own past behaviour in neglect of their children’s needs, their violence, high levels of illicit drug use and criminal offending. In some circumstances, they may be the only living parent for their child or children. Many participants are also before the Children’s Court Family Division, or the Family Court. It is my experience that with the identification and management of particular issues for an accused, including mental health review, Acquired Brain Injury, and drug use, with the ARC List approach and court oversight, stability can return. In some participants, this enables safe and meaningful contact with children to recommence, or relationships be developed or perhaps rekindled. It is a critical acknowledgement of how a participant’s success through the ARC List approach can have an impact on many other people. [App 2] 141

Appendix Three ARC LIST IN THE COMMUNITY ARC List community engagement [App 3] Since the program’s inception, the staff of the ARC List, including the magistrates themselves, have actively promoted the ARC List program and developed links with a wide range of service providers and organisations. The ARC List team has actively sought to undertake community education and engagement activities and have conducted presentations on the ARC List to a vast range of services including the following: • Brain Link Forum, as part of Brain Injury Awareness Week • Department of Human Services, Disability Client Services, North West and Southern regions

• Department of Human Services, Disability Justice Forum • Department of Justice, Disability Policy Network • Department of Justice, Disability Stakeholders Forum • Footscray Mental Health Network • Hanover Welfare Services • International Association of Forensic Mental Health Services (IAFMHS) • Law Institute of Victoria Criminal Law Conference • Jobco – Brunswick, Personal Helpers and Mentors Program • NorthWestern Mental Health Service, Melbourne Health • NSW Law Reform Commission Symposium • Office of the Public Advocate “Independent Third Person Conference” • Police, Ambulance, Crisis Assessment Team Early Response (PACER) training day • • • • • • • •

ORYGEN Youth Health Services Tasmania Institute of Law Enforcement Studies VICSERV Victim Support Agency Victoria Police Victorian Bar Waiora Community Mental Health Service Junction Community Mental Health Service

Furthermore, the ARC list has attracted domestic and international visitors including: [App 3] 143

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• Hon Andrew McIntosh MP, Minister for Corrections and Crime Prevention • Representatives from the New Zealand District Court. • Social workers from Inner West Area Mental Health Service • Representatives from the Hitotsubashi, Ritsumeikan and Shizuoka Universities of Japan

• Hon Paul Lucas, Queensland Attorney-General • President of the Victorian Mental Health Review Board • Representatives from the NSW Law Reform Commission • Development Officer, Revolving Doors, United Kingdom • Delegates from the Australian Community Support Organisation Forensic Division • Chairman and Manager of Criminal Law Services • Board members from Victoria Legal Aid It is clear that the ARC List is attempting to actively engage with the community in order to increase the profile of the List and to promote its use to various stakeholders, including academics, legal practitioners, court administrators, health care workers and the public. This seeks to increase the efficacy of the ARC List by encouraging research and by educating possible referrers to the list. The list of visitors indicates that the ARC List is creating interest both nationally and internationally and this is testament to the perceived effectiveness of the ARC program.

144 [App 3]

Appendix Four THE ARC LIST AWARDS [App 4] The Victorian State Government and Melbourne City Council have both publically acknowledged the efficacy of the ARC List. The ARC List has been awarded two prestigious awards, the Melbourne Award and the Mental Health Services Silver Award (2014). On the 16 November 2013, the ARC List was awarded the Contribution to Community by a Corporation Award at the Prestigious Melbourne Awards. The Melbourne Awards are the city’s highest accolade that recognise significant achievements in the areas of sustainability, community and profile. 1 In 2013, the ARC List was also awarded a Silver Award for Mental Health Service Achievement, which recognises and rewards best practice, innovation and excellence in Mental Health Service Delivery in Australia and New Zealand. The ability of this List to attract such prestigious local awards is again testament to the positive impact that the ARC List is having within the community.

1

City of Melbourne, 2014. [App 4] 145

Appendix Five AIM OF THE CURRENT STUDY [App 5.10] The research undertaken in this book will be a critical and systematic enquiry aimed at evaluating the efficacy of the ARC List that operates out of the Magistrates’ Court of Victoria. The aim of the current study is to determine the degree to which participation in the ARC List has a positive impact on re-offending rates, by providing a comparative analysis of pre, peri, and post program offending rates, the time taken to re-offend and the severity of post program offending behaviour.

METHODOLOGY [App 5.20] It is important to acknowledge at the outset that research methods and research methodology are not the same. 1 The methodology of a research project is the “approach taken to the research design as a whole in relation to answering the research questions”. 2 Research methods, on the other hand, are the “techniques used to collect and analyse data to provide evidence for the posited knowledge that the research constructs”. 3 This chapter will be concerned with the methodology for this book; the method for undertaking the particular studies in this project will be discussed in Chapters Six and Seven respectively.

MIXED METHODS APPROACH [App 5.30] The mixed methods approach involves the collection and “mixing” of both quantitative and qualitative data in a study. 4 Importantly, this mixed methods or multi-method approach utilises both qualitative and quantitative sources to generate richer data, which in turn provides for theory development, hypothesis testing and generalisation. 5 A mixed methods approach to legal research was supported by Nielsen (2010) in her seminal paper entitled “The Need for Multi-method Approaches in Empirical Legal Research”. 6 This current 1

2 3 4

5 6

Jackson, 2013; Sikes, 2004.

Jackson, 2013, p 55. Jackson, 2013, p 55. Creswell, 2014.

McMurray, Pace & Scott, 2004. Nielsen, 2010; Bachman & Schutt, 2007; Brewer & Hunter, 2006. [App 5.30] 147

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study will utilise the multi-method approach 7 and this will enable the researcher to analyse and compare all the data that were collected. Evaluation studies describe and analyse the assumptions underlying the application and effects of interventions used in various programs within the legal system. 8 The evaluation of laws, programs and other interventions from different perspectives has been characterised as transdiscipline. 9 The study and evaluation of programs in law is transdiscipline because it takes into account insights from philosophy, history and the behavioural sciences. 10 Evaluation is an integral process to the thesis of this book. Leeuw (2011) identified several types of evaluation in legal research: the ex ante evaluation, which is conducted to predict the possible consequences of implementing various tools or programs; process evaluations, which seek to assess the degree to which policies and programs have been implemented as agreed; and organisational evaluations, which seek to assess how organisations operate and how they interact within the overall community environment. The final type of evaluation identified in Leeuw’s (2011) research is an impact or effectiveness evaluation, which is tasked with assessing the degree to which the goals of a policy or program have been reached and to what extent this has been caused by the intervention that is under investigation. Leeuw and Vaessen (2009, p 64) identified six basic criteria that ought to be used as a guide when undertaking an impact evaluation: 1.

Identify the type and scope of the intervention that has to be evaluated. 11

2.

Identify the most important objective for the evaluation.

3.

Carefully articulate the theories linking the interventions to outcomes, for example studies on the reduction of recidivism.

4.

Address the attribution problem; this is best achieved by utilising a randomised controlled sample.

5.

Use a mixed methods approach during data collection to ensure validity. Leeuw and Vaessen (2009) describe the importance of ensuring that the study has internal validity, 12 construct validity, 13 external validity 14 and statistical conclusion validity. 15

6.

Build on existing knowledge relevant to the impact of interventions.

7 8 9 10 11 12 13 14 15

Fielding, 2010. Leeuw, 2011. Scriven, 2013, 2008. Scriven, 2013, 2008; Smits, 2009. See for example Tremper, Thomas & Wagenaar, 2010. Internal validity: Establishing the causal relationship between intervention outputs and processes of change leading to outcomes and impacts (Leeuw, 2011, p 62). Construct Validity: Ensuring that the variables measured adequately represent the underlying realities of the development interventions linked to processes of change (Leeuw, 2011, p 62). External validity: Establishing the generalisability of findings to other settings (Leeuw, 2011, p 62). Statistical conclusion validity: For quantitative techniques, ensuring a degree of confidence about the existence of a relationship between intervention and impact variables and the magnitude of change (Leeuw, 2011, p 62).

148 [App 5.30]

Appendix Five

Leeuw (2011) suggests that by following some of these methods, the validity and generalisability of the evaluation study can be increased exponentially. In addition, Payne (2007) discussed the importance of identifying a clear research goal in order to shape the book. Evaluation studies in law are capable of yielding meaningful insights into how “broadly, deeply and effectively” programs such as the ARC List meet these goals and objectives. 16 The purpose for which research is undertaken also helps to define its contextual parameters, that is, the broad range of factors that influence the research and the methodological decisions made by the researchers. The aim of this study provides the setting for the analysis by defining the parameters of both the data collection and the analytic techniques to be used. Having an appreciation of this context provides the necessary platform from which the results of this study are interpreted and can be applied to a broader population where possible. 17

EVALUATION RESEARCH [App 5.40] Evaluation research was the type of research used to evaluate the efficacy and efficiency of the ARC List. According to Christie (2003), the aim of conducting an evaluation study is to assess the merits and effectiveness of programs or interventions that are designed to improve the welfare of people, organisations, social processes and society. Before commencing an analysis of the data collected for the current study, it is necessary to assess the efficacy of evaluation research as a research strategy, in line with the approach suggested by Graham (2007). Graham (2007) further suggests that this form of research is increasingly evidence driven, due to the need to conduct evidence-based best practice research; as such it is of paramount importance to evaluate the advantages and limitations of this research methodology. Evaluation research has quickly become a common research methodology in legal related research spheres. Indeed, Travers (2005) concluded that evaluation research has almost become a dominant paradigm in criminal justice research. The benefits of using evaluation research were discussed by Favilla, Goh, McDermott, Meadows and Wadsworth (2007). The authors identified seven key advantages in monitoring the progress and effectiveness of programs through evaluation research style methodologies. These are outlined below: 1.

for accountability purposes: services and programs are accountable to funders, service users, service providers, the community in general, as well as various professional communities;

2. 3. 4.

in order to know what works in a situation, and what does not work;

16 17

in order to monitor what is being done; in order to generate knowledge, especially in regards to value, merit, worth, and significance; Tremper et al, 2010. Payne, 2007.

[App 5.40] 149

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5.

in order to test or verify what is known;

6.

in order to keep a program responsive to changes in needs, attitudes, or the priority given to particular issues on the public agenda; and

7.

service providers may engage in evaluation because they want to: a.

know the efficiency of their own practice,

b.

explore and understand their own experience,

c.

participate in or play a part in effecting systemic or organisational change; and

d.

consider changes to existing treatment and intervention practices. 18

These seven advantages all seek to explain the utility of research of this kind. Graham (2007) also suggests that undertaking an analysis of efficiency and effectiveness of Mental Health Lists or courts undoubtedly contributes to awareness within the system and that this can be a catalyst for improvement within the List or any necessary change. This point is further supported by Favilla et al (2007), who suggest that the evaluation process, the value of stakeholder and participant input from the bench, bar table and other groups, is diminished or completely ignored if the evaluation recommendations are not put into effect for whatever social, economic, political or historical reasons. 19 This methodology was chosen for use in this study. In particular, it is clear that the program is intended to do more than treat mentally ill offenders more fairly and with more dignity. This program is intended to work in the sense of reducing recidivism and the research for this study enabled the researcher: to assess the efficacy of the pilot ARC List program, to provide suggestions for future adaptations to the model and to provide quantitative data about the impact that the List is having on the recidivism rates of participants.

Criticisms of evaluation research [App 5.50] Due the increase in this use of type of research methodology, it has attracted criticism from groups within both sociology 20 and criminology 21 One of the reoccurring themes in the criticism of evaluation research, as noted by Graham (2007), is that some research presents a biased view of the subject of a study depending on who hired the researcher, or which organisation or individual is financing the project. 22 This current study was conducted fully independently of the Melbourne Magistrates’ Court and the Department of Justice and the researcher received no financial payment or incentive at any time. The researcher’s rights to publish the results of the research were not dependant 18 19 20 21 22

Favilla et al, 2007, p 247. Favilla et al, 2007. Payne, 2007; White, 2001. Graham, 2007; Payne, 2007; Travers, 2005. This highlights the fact that the uses of evaluation research can sometimes vary and that this could be used to hide the failure of an evaluation.

150 [App 5.50]

Appendix Five

on the outcome of the research. The researcher’s career prospects did not depend on participants’ responses to the results of this research. Travers (2005), as cited by Graham (2007), suggests that a more complex political analysis stemming from this reoccurring criticism, is the perception that evaluations always “present an upbeat picture of organisations struggling with and overcoming problems in a process of ‘continuous improvement’ that must reflect the views of those who commissioned the research” (Graham, 2007, p 24). It is for this reason that the research for the current study sought to interview a cross-section of key stakeholders within the ARC List 23. As a result of the diverse groups of practitioners and stakeholders participating in the ARC List and in this study, any assertion that the evaluation findings must reflect their views is erroneous due to the differences in key perspectives. Thus, one perspective may emerge as dominant or widely supported, but it is not the case that a homogenous unified perspective exists in this study between all practitioners. 24 Clarke and Dawson (1999) noted that although evaluation research can be problematic, if properly conducted it can produce beneficial effects and make positive contributions to the criminal justice program or the organisation being analysed.

USE OF RECIDIVISM STUDIES AS MARKERS OF PROGRAM SUCCESS [App 5.60] Recidivism data is an accepted basis for assessing the efficacy of particular programs within the Australian criminal justice system. 25 For example, in an evaluation study that assessed the effectiveness of the Queensland Drug Court, conducted by Makkai and Veraar (2003), recidivism was used a measure of program effectiveness. 26 The results of that study were used to justify the implementation of the drug court program permanently in Queensland. 27 It is central to the therapeutic jurisprudence movement’s critique of traditional criminal justice procedures and to defences of problem-solving courts that these institutions reduce recidivism. If it were otherwise, the asserted failure of the criminal justice system would imply that the alternative had failed too. The argument that therapeutic jurisprudence is expensive but efficient stands only if therapeutic jurisprudence means that some people who would otherwise re-offend are successfully treated. 23

24 25

26 27

However, the results of these interviews were unable to be printed in the current book.

Travers, 2005. See Lim & Day, 2014, 2013.

Payne, 2005. It is also interesting to note that the same set of data was used by the subsequent Newman Government to abolish drug courts. The Newman Government focused on the cost-benefit ratio and found that the drug court was not cost effective, as the program did not “work” for all participants, that is, there were some recidivist offenders. However, the real value of the problem solving court lies in their ability of the court to recognise that mental illness and addiction are lifelong afflictions that require constant attention. See the work of Hora (2002) for example. [App 5.60] 151

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Recidivism research has a number of purposes; firstly prevalence studies are conducted to estimate recidivism rates and the size of the recidivist population. These answer such questions as whether imprisonment is an effective crimecontrol strategy. Secondly, exploratory studies are conducted which focus on identifying common characteristics that correlate with recidivism. These are of theoretical, methodological and practical significance. A third category of recidivism research uses recidivism as an outcome measure in an evaluation of a program. This project seeks to measure the extent to which participation in a particular program or intervention reduces the risk of re-offending. There have been several studies within Australia that have used recidivism as a mechanism with which to measure program efficiency and effectiveness. These studies include: an evaluation of re-offending among participants in specialist drug courts in Queensland, New South Wales, Western Australia; 28 an evaluation of the Magistrates Court diversion program in Adelaide; 29 as well as, evaluations of juvenile justice interventions such as youth conferencing. 30 Payne (2007) in a leading study that examined the methodologies of other Australian recidivism studies, identified a model of recidivism research in Australia. This model is represented in Figure 10 below. Figure 10 Recidivism research

[Source: Reproduced from Recidivism in Australia: findings and future research by Jason Payne (2007), p 6, with permission from the Australian Institute of Criminology.] 28 29

30

Payne, 2005; University of Western Australia Crime Research Council, 2003; Makkai & Veraar, 2003; Lind et al, 2002. Skrzypiec, Wundersitz & McRosite, 2004. Hayes & Daly, 2004; Luke & Lind, 2002.

152 [App 5.60]

Appendix Five

The measurement model outlined in Figure 10, taken from Payne, 31 assumes the existence of a sequence of criminal events that can be observed and measured. This sequence involves three distinct elements: 1.

The sample: The group of individuals/offenders whose recidivism is being measured. Their selection is often tied to what is commonly referred to as an index event.

2.

The indicator events: The number and type of events observed subsequent to the index event, which are considered to be indicative of re-offending.

3.

Time: The period over which the sequence of indicator events are observed.

In its simplest form, this model views recidivism as any secondary event occurring subsequent to an index event. Time is inherent in the model because the index and indicator events must occur separately, whether separated by minutes, days, weeks or years. The index and indicator events are essentially the same units of offending, but the index event is the first of the events observed over time. 32 The current study uses a two-year model, where recidivism is studied for two years, at pre, peri and post ARC List program intervention intervals. In accordance with the recidivism study conducted by Moore and Hiday (2006), this study will also assess factors associated with recidivism, such as age, gender and number of days as an ARC List participant. Moore and Hiday (2006) included three criminal history variables in their model – prior offences, severity score and severity of the main charge – that led to the referral to the mental health court and whether participants were jailed in the year prior to entering the mental health court. It was found that only prior arrest affected the rate of re-arrest and that the more severe offences increased the possibility of re-arrest at proportionally higher rates. Interestingly, failure to complete the mental health court program did not affect the odds of re-arrest in contrast to the comparison group. The research for the current study was carried out in line with the approach taken in the studies above. It uses recidivism analysis to assess the degree to which the program has succeeded when evaluated in terms of the considerations that prompted its establishment.

31

32

2007, p 6.

Payne, 2007. [App 5.60] 153

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ETHICAL CONSIDERATIONS [App 5.70] Clough and Nutbrown (2012) posit that research is a moral act, whereby the researcher is charged with the duty of ensuring that the changes that result from the research are for the “social” good. It was further suggested by these authors that being critical is an essential part of undertaking research ethically. 33 Undoubtedly, undertaking research is a moral endeavour and consequently ethics forms a large part of the framework to be considered. 34 Australian research is required to comply with the rules and guidelines laid down by the National Health and Medical Research Council, the Australian Research Council and the Australian Vice-Chancellors’ Committee 35 (2007) in a document that was updated in May 2015. The Australian Research Council identified four key principles for research in Australia: 1.

Research merit and integrity: Unless the research has merit and the researchers have integrity, the involvement of human participants in the research, according to the Australian Research Council (2007) cannot be ethically justifiable.

2.

Justice: Recruitment ought to be fair and the research outcomes should be made accessible to research participants in a way that is timely and clear.

3.

Beneficence: The likely benefit of the research must justify any risks of harm or discomfort to the participants and the project must benefit the participants and/or the wider community.

4.

Respect: Defined as the recognition of the intrinsic value of human beings. This includes, having due regard for the welfare, perceptions, customs and cultural heritage of the collective and individuals involved in the research.

In recognition of the need to adhere to these principles and in line with the approach suggested by McMurray et al (2004), this book aims to: • Contribute to the well-being of others without harmful consequences. • Work within basic moral and decency guidelines. • Respect all individuals. • Avoid actions and decisions that elicit irresponsible behaviours. • Respect the rights of participants and respond to any imbalances that may arise between the participant and the researcher.

• Communicate the intended purpose of the study. • Be culturally sensitive. • Be respectful of personal privacy and to handle confidential information sensitively and in line with the approach mandated by the La Trobe University Human Research Low-Risk Ethics Committee and the Victorian Department of Justice Human Research Ethics Committee.

• Seek the ethics approval from any relevant organisation prior to the commencement of the study. 33 34 35

Clough & Nutbrown, 2012. Chesser, 2015. Identified herein as the Australian Research Council.

154 [App 5.70]

Appendix Five

This project was deemed to be a low-risk project, however, ethics approval from two organisations was required to be gained before the study could commence. The researcher sought and was granted ethics approval to undertake the current study from the Victorian Department of Justice Human Research Ethics Committee (CF/13/15748) and the Human Research Low-Risk Ethics Committee of La Trobe University (11–13PG). After receiving a detailed description of the study, and being shown the relevant questions, all participants gave informed consent according to a protocol approved by both the Victorian Department of Justice Human Research Ethics Committee and the La Trobe University Human Research Low-Risk Ethics Committee, Victoria.

[App 5.70] 155

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190

INDEX A American Psychiatric Association (APA) Diagnostic and Statistical Manual of Mental Disorders (DSM-5), [1.50], [1.130], [5.130] ARC List — see Assessment and Referral Court (ARC) List (Vic) ARC List recidivism study aim of, [6.90] archival de-identified data, [6.30] areas for further research, [7.150] Bonferroni adjusted a, [6.50], [6.130] conclusions, [7.10], [7.160] court data, limitation of using, [6.170] data analyses, [6.50], [6.110] data preparation, [6.50] descriptive data, [6.70] discriminant function analysis, [6.140] discussion, [6.150], [7.160] Friedman three way ANOVA, [6.50], [6.130] IBM PASW Statistics Version 22, [6.50] importance of recidivism reduction, [6.10] Kaplan-Meier analysis, [6.50], [6100], [6.110], [6.150] limitations of study, [6.160], [6.170] court data, use of, [6.170] methodology, [6.30], [6.40] offence classification and coding, [6.40] participants, [6.100] pre, during and post program offending profiles, [6.130] predictors of post-program recidivism, [6.140] primary mental health diagnoses of participants, [6.80] procedure, [6.30] purpose of, [6.20] qualitative data, [6.20] quantitative data, [6.20], [6.60] recidivism data, [6.90] recidivism studies as markers of program success, [App 5.60] recommendations, [7.140] sample groups, [6.30] sample selection, [6.100] significance of results, [6.150] stakeholders, variation in views of, [7.10] successful program completion as predictor of non-re-offending, [6.150] time to re-offend, [6.100] ARC List completers, [6.110] comparison with non-completers, [6.120] significant difference between groups, [6.150] Wilcoxon Signed Rank test, [6.50], [6.130]

Assessment and Referral Court (ARC) List (Vic) administration, [7.30] aims, [5.90], [5.110], [5.180] ARC List Implementation Working Group, [5.90] ARC List team, [5.180] areas for further research, [7.150] assessment for, [5.180] Awards, [5.230], [App 4] background, [5.90] Canadian model, influenced by, [5.50], [5.110] case studies, [App 1.CS1]–[App 1.CS3] collaborative relationships, [5.180] community engagement activities, [5.230], [App 3] recommendations for community education, [7.140] consent of participant, [5.120] convening hearing for report on progress, [5.160] cost effectiveness, [7.10] Court Integrated Services Program, [5.80] immediate support needs addressed by, [5.180] initial assessment by, [5.180], [App 1.CS2] merger of resources with, [7.50] Referral Form available from, [5.180] referrals from team members, [5.190] short-term case management, [5.180] court requirements, monitoring adherence, [7.110] court team, [7.100] creation of, [5.100] current study aims of, [App 5.10] ethical considerations, [App 5.70] evaluation research, [App 5.40], [App 5.50] methodology, [App 5.20] mixed methods approach, [App 5.30] recidivism studies as markers of success, [App 5.60] data, [5.210]–[5.230] date collection, [7.140] discharge from, [5.160], [5.200] eligibility for admission, [5.120], [7.40] diagnostic criteria, [5.130] functional criteria, [5.140] needs criteria, [5.150] recommendations regarding, [7.140] essential elements of mental health courts, assessment, [7.10]–[7.120] evaluation, [5.100] evaluation group, [7.30] evaluation research, [App 5.40] criticisms of, [App 5.50] extension of, [7.140] flexibility and practicality, [7.120], [7.130] funding, [7.10] future of, [7.130] 191

Criminal Courts and Mental Illness Assessment and Referral Court (ARC) List (Vic) — cont histories of offenders, [App 1.CS1]–[App 1.CS3] impact on participants, [7.10] recidivism — see ARC List recidivism study individual support plan, [5.150], [5.180] approval of, [5.180] case studies, [App 1.CS1], [App 1.CS2] development of, [5.180] number successfully completed, [5.210] power to adjust or amend, [5.160], [7.110] project plan, [5.90] report on compliance with, [5.160] sentencing, participation taken into account in, [5.200] successful completion of, [5.200] informality of proceedings, [5.170] informed choice, [7.70] linkage to services, [7.50] Magistrates’ Court of Victoria annual reports, [5.230] commitment to, [5.230] part of, [5.90], [5.100] multidisciplinary support, [7.80] number of hearings, [5.210] number of participants, [5.210] number of referrals to, [5.110], [5.190] ongoing judicial monitoring, [7.140] operation of, [5.110] period of involvement, [5.170] pilot, [5.100] planning, [7.30] powers, [5.160] pre-sentence program, [5.110] primary diagnoses of participants, [5.130], [5.210], [6.80] project logic map, [5.90] reasons for removal or non-acceptance, [5.220] recidivism, reduction of aim of, [5.90], [5.110] study on — see ARC List recidivism study recommendations in relation to, [7.140] referral process, [5.180] referral sources, [5.190] reflection on, by Magistrate Anne Goldsbrough, [App 2] regular attendance by participants, [5.170] removal from, [5.160], [5.220] SA program, modelled on, [5.110] stakeholders recommendation for meetings of, [7.140] variation in views of, [7.10] statistics from, [5.210] sustainability, [7.120] target population, [7.40] Tas program, modelled on, [4.180], [5.110] terms of participation, [7.60] 192

therapeutic jurisprudence model, [5.90], [7.130] timely participant identification, [7.50] treatment supports and services, [7.80] voluntary participation, [7.70] Asylums deinstitutionalisation — see Deinstitutionalisation historical treatment of mental illness, [2.20], [2.30] Attribution theory, [2.110] Australian Capital Territory Civil and Administrative Tribunal - Mental Health List, [4.80] definition of mental illness, [1.100] diversionary programs not operating in, [4.100] mental health court not operating in, [4.100] mental health legislation, [4.80] Australian Constitution legislative powers, [4.80], [4.90] criminal law, [4.90] mental health, [1.80], [4.80] Australian mental health legislation definition of mental illness, [1.80] Australian Capital Territory, [1.100] Commonwealth, [1.90] New South Wales, [1.110] Northern Territory, [1.120] Queensland, [1.100] South Australia, [1.100] Tasmania, [1.120] Victoria, [1.100], [1.130] Western Australia, [1.110] division of powers, [4.80] legislative powers, [4.80], [4.90] list of Mental Health Acts, [4.80] mental health and criminal justice system, [4.90] mental health tribunals, [4.80] overview, [4.80] states and territories responsible for, [1.80], [4.80]

B Bradley Report (UK), [2.70], [4.60]

C Canadian mental health courts diversionary model, [4.50]

Index Canadian mental health courts — cont fitness to stand trial, determining, [3.210], [4.50] objectives, [3.210], [4.50] pre-adjudication model, [4.50] Victorian approach influenced by, [5.50], [5.110] Children age of criminal responsibility, [2.160] recidivism and age, [3.280] specialist courts, [3.40] Civil libertarian movement deinstitutionalisation and, [2.50] Community-based care deinstitutionalisation — see Deinstitutionalisation inadequacy of, [2.70] psychopharmacotherapy and, [2.60] Community engagement ARC List, [5.230], [App 3] recommendations for community education, [7.140] Community perceptions of mental illness attribution theory, [2.110] changes in, [2.210] de-humanisation, [2.110] entrenched perceptions, [2.80] Folk Psychiatry Model, [2.110] media portrayals influencing, [2.110], [3.240] medicalising, [2.110] moralising, [2.110] pathologising, [2.110] psychologising, [2.110] stigmatisation, [2.100], [2.110], [3.240] Community treatment orders international debate about, [5.40] Mental Health Review Board (Vic), [5.30], [5.40] multidisciplinary approach in Victoria, [5.40]

| D

merger of resources with, [7.50] Referral Form, [5.180] referrals from team members, [5.190] short-term case management, [5.180] Criminal behaviour mental illness leading to, [2.130] symptom of mental illness, [2.110] Criminal justice system Australian mental health and criminal justice system, [4.90] barriers for people with mental illness, [2.130] deinstitutionalisation and entry into, [2.70], [2.140] failure to address therapeutic needs of the mentally ill, [3.60] fair trial, right to, [3.210] mental health system at odds with, [3.60] mental illness, link with, [2.20], [2.130] over-representation of mentally ill persons[2.140], [3.60] transinstitutionalisation, [2.140] Criminal liability age of, [2.160] decision-making body, [4.80] insanity defence, [1.70], [2.160] M’Naghten test, [1.70], [2.160] mens rea, [2.150] mental impairment defence, [2.150], [2.160] mentally ill offenders, [2.150], [2.160] presumption of rationality, [2.160] voluntary conduct, [2.160] Criminalisation of the mentally ill, [2.110], [3.250]

D Declaration on the Rights of Disabled Persons, [4.20] Declarations of Human Rights, [2.30]

Convention on the Rights of Persons with Disabilities, [4.20]

Defences to criminal responsibility automatism, [2.160] diminished responsibility, [2.160] insanity, [1.70], [2.160] involuntary conduct, [2.160] mental impairment defence, [2.150], [2.160] therapeutic jurisprudence view, [3.20]

Court Integrated Services Program (Vic), [5.80] ARC list case studies, [App 1.CS1], [App 1.CS2] initial assessment for, [5.180], [App 1.CS2]

Definition of mental illness Australian mental health legislation, [1.80] Australian Capital Territory, [1.100] Commonwealth, [1.90] New South Wales, [1.110] Northern Territory, [1.120]

Confidentiality ARC List, [7.90] mental health courts, [3.150]

193

Criminal Courts and Mental Illness Definition of mental illness — cont Queensland, [1.100] South Australia, [1.100] Tasmania, [1.120] Victoria, [1.100], [1.130] Western Australia, [1.110] clinical definition, [1.50] Criminal Code Act 1995 (Cth), [1.90] Criminal Lunatics Act 1800, [1.70] cultural construction, [1.40] diagnostic aids and guides, [1.50] DSM-5 definition, [1.50], [1.130] exclusions, [1.100], [1.120], [1.130] Hadfield case, [1.70] ICD-10 definition, [1.50] lack of consensus, [2.10] legal definition, [1.70] Australian mental health legislation, [1.80]–[1.120] contextual results, [1.70] exclusions, [1.100], [1.120], [1.130] implications of, [1.70] Lunacy Act of 1890, [1.70] M’Naghten test, [1.70], [2.160] nonpsychotic, [1.50] problems with, [1.40] psychotic, [1.50] range of disorders, [1.40] social construction, [1.40], [1.60] UK Mental Health Acts, [1.70], [1.80] working definition for book, [1.130] Deinstitutionalisation aims of movement, [2.80] Australian experience, [2.70] Australian perspective, [2.50] civil libertarian movement and, [2.50] community-based care, shift to, [2.70] components of, [2.40] historical perspectives, [2.30], [2.40] homelessness and, [2.140] inadequacy of system, [2.80] increased entry into criminal justice system, [2.70], [2.140] process of, [2.30], [2.40], [2.70] psychopharmacology movement, [2.60] timeline, [2.70] Victorian experience, [2.70] vulnerability mentally ill people due to, [2.70] Young and Ashman longitudinal study, [2.70] Deterrence ineffectiveness of, [2.190] mentally ill offenders, [2.190] sentencing principle, [2.180], [2.190] Deviance definition, [2.90] functions of, [2.90] mental illness as, [2.10], [2.90] 194

Diagnostic aids and guides ARC list diagnostic criteria, [5.130] definition of mental illness, [1.50] DSM-5, [1.50], [1.130], [5.130] ICD-10, [1.50] Disease of the mind common law defence, [1.70] M’Naghten rules, [1.70] Diversion and diversion programs broad aim, [2.200] Canada, [4.50] court diversion, [3.60] decision-making bodies, [4.80] jurisdictions with diversionary approach, [4.100], [4.140] mental health courts — see Mental health courts mentally ill offenders, for, [2.210] New South Wales, [4.100], [4.130] post-plea diversion, [3.60] pre-arrest diversion, [3.60] procedural justice and, [3.50] recidivism, reduction in, [2.210], [3.60] rehabilitation, hope for, [2.210] sentencing option, [2.210] South Australia, [4.100], [4.140] Magistrates Court Diversion Program, [4.150]–[4.170] Mental Health Lists, [4.140], [4.180] Tasmania, [4.100], [4.140] Magistrates Court Mental Health Diversion List, [4.180]–[4.240] Mental Health Tribunals/Lists, [4.80], [4.180] therapeutic jurisprudence, [2.200] Victoria, [4.100], [4.140] ARC List — see Assessment and Referral Court (ARC) List (Vic) community treatment orders, [5.40] Court Integrated Services Program, [5.80], [5.180], [5.190] previous initiatives, [5.20]–[5.40] Western Australia, [4.100], [4.140] Mental Health Court Liaison Service, [4.250] Drug abuse — see Substance abuse

E Ethics of research, [App 5.70]

F Fitness to stand trial adjournment of trial, [2.170] competence to plead, [3.210]

| J

Index Fitness to stand trial — cont criteria for unfitness, [2.170] decision-making body, [4.80] mental health court determining (Canada), [3.210], [4.50] special hearing where unfit, [2.170] traditional approach to mental illness, [3.10] Folk Psychiatry Model, [2.110] Foucault, Michel, [1.40]

G Global response international conventions, [4.10], [4.20] mental health courts, [4.30]–[4.60] problem-solving courts, [4.30] rights of mentally ill persons, [4.20] treatment of mentally ill persons, [4.10] Goldsbrough, Anne reflection on ARC List by, [App 2] Guilty plea competence to plead, [3.210] diversion programs, whether required for ARC List (Vic), [5.120] Magistrates Courts Diversion Program (SA), [4.160] Mental Health List (Tas), [4.200] due process rights, [3.220] mental health courts requiring, [3.220] sentence hearing where, [2.170]

H Hallucinations definition of mental illness, [1.110], [1.120] mental disorder, indicating, [1.10] Hobart Magistrates Court — see Magistrates Court Mental Health Diversion List (Tas) Homelessness criminal activity and, [2.140] deinstitutionalisation and, [2.140] Special Circumstances Court (Qld), [4.120] specialist courts, [3.40] Human Rights and Equal Opportunities Commission National Inquiry into Human Rights of the Mentally Ill, [2.70]

I Individual support plan ARC List participants, [5.150], [5.180] approval of, [5.180] development of, [5.180] number successfully completed, [5.210] power to adjust or amend, [5.160], [7.110] project plan, [5.90] report on compliance with, [5.160] sentencing, participation taken into account in, [5.200] successful completion of, [5.200] Informed choice ARC List participation, [7.70] mental health court participation, [3.130], [3.200] capacity to make, [3.210] Insanity common law defence, [1.70] abolition of common law defence, [1.70] Hadfield case, [1.70] M’Naghten case, [1.70] decision-making body, [4.80] definition, [1.70] replacement of term, [1.70] International conventions Convention on the Rights of Persons with Disabilities, [4.20] Declaration on the Rights of Disabled Persons, [4.20] International Covenant on Civil and Political Rights, [4.20] Principles for the protection of persons with mental illness and the improvement of mental health care, [4.20] rights of mentally ill persons, [4.10], [4.20] Standard Minimum Rules for the Treatment of Prisoners, [4.20] International Covenant on Civil and Political Rights, [4.20]

J Judiciary therapeutic jurisprudence, non-judicial role in, [3.30] training on impact of mental illness, [3.270] 195

Criminal Courts and Mental Illness

L Legal definition — see Definition of mental illness

M M’Naghten rules, [1.70], [2.160] Magistrates Court Diversion Program (SA) aims of program, [4.160] average time of participation, [4.160] Clinical Advising Team, [4.150] Clinical Liaison Team, [4.150] evaluations, [4.170] overview, [4.150] procedure for entry into, [4.160] recidivism study, [4.170] voluntary participation, [4.160] Magistrates Court Mental Health Diversion List (Tas) aim, [4.190] assessment for, [4.220] conditions for participation, [4.200] court supervision of offender, [4.230] eligibility for participation, [4.200] evaluation, [4.240] Forensic Mental Health Court Liaison Officer assessment by, [4.220] provision of information to court, [4.220] individuals found not to be suitable, [4.230] multidisciplinary team, [4.230] number of referrals to, [4.240] overview, [4.190] pilot, [4.190] primary diagnosis of participants, [4.240] referral to, [4.210] treatment plan, [4.220] Victorian ARC List modelled on, [4.180] voluntary participation, [4.200] Magistrates’ Court of Victoria annual reports, [5.230] ARC List — see Assessment and Referral Court (ARC) List (Vic) Court Integrated Services Program, [5.80] merger of resources with ARC List, [7.50] role in ARC List, [5.180], [5.190] establishment, [5.60] Mental Health Court Liaison Service, [5.70] pilot Mental Health List, [5.50] specialist courts/Lists, [5.60] Mental disorder definition, [1.30], [1.50] DMS-5 definition, [1.50], [1.130] 196

ICD-10 definition, [1.50] Mental health definition, [1.20] subjective analysis, [1.20] terminology, [1.10] Mental Health Act Implementation Project Advisory Group, [2.70] Mental Health Court Liaison Service (Vic) Magistrates’ Courts included, [5.70] services provided by, [5.70] Mental Health Court Liaison Service (WA) liaison with relevant NGOs, [4.250] overview, [4.250] referral to, [4.250] Mental health courts — see also Mental health tribunals abuse treatment centres, linkages with, [3.140] administration, [3.90] admission process, [3.70] alternatives to, [3.270] Canada, [3.210], [4.50] characteristics, [3.60] competence of participant, [3.210] compliance, monitoring, [3.170] confidentiality, [3.150] court team, [3.160] criminalisation of the mentally ill, [3.250] criticisms of, [3.190]–[3.260] data on operation, [3.180] definition, [3.60] disadvantages to participants, [3.190] diversion from traditional adversarial system, [3.60] diversion of resources, [3.250] due process rights, [3.220] empirical data, lack of, [3.260] essential elements, [3.80]–[3.180] ARC List, assessment against, [7.10]–[7.120] fair trial, right to, [3.210] fitness to stand trial, determining, [3.210], [4.50] flexible and adaptive court, [3.180] general program parameters, [3.120] guilty plea, requiring, [3.220] identification of participants, [3.60], [3.70] limiting number, [3.100] timely, [3.110] informal nature, [3.230] informed choice, [3.130], [3.200] capacity to make, [3.210] international developments, [4.30] jurisdictional difference in composition, [3.160] length of participation, [3.120], [3.190] less-adversarial nature, [3.230]

Index Mental health courts — cont linkage to services, [3.110], [3.140] multidisciplinary committee to facilitate design, [3.90] multidisciplinary teams, [4.40] opting out of, [3.130], [3.200] option to participate in, [3.70], [3.200] paternalism and coercion, [3.190] planning and administration, [3.90] primary goal, [3.60] problem-solving courts, [3.20], [3.40], [4.30] procedural justice, [3.50], [3.220], [3.230] Queensland, [4.30], [4.100], [4.110] reactive nature of, [3.190] recidivism, reducing, [3.60], [3.280] referral to, [3.110], [3.190] rehabilitation and, [4.40] specialist criminal courts, [3.60] staff training, [3.160] stakeholders, [3.70] stigmatisation and, [3.220], [3.240] supervision of participants, [3.190] sustainability, [3.180] target population, [3.100] terminology, [4.30] terms of participation, [3.120] therapeutic jurisprudence approach, [3.90] timely linkage to services, [3.110] timely participant identification, [3.110] treatment plan, [3.60] assisting offender to comply, [3.140] incentives rewarding adherence to, [3.60] service providers advising court on, [3.140] treatment supports and services, [3.140] United Kingdom, [4.60] United States, [3.60], [3.80], [4.40] variations in, [3.60] voluntariness of participation, [3.130], [3.200] competence of participant, [3.210] informed choice, [3.130], [3.200] Mental health legislation — see Australian mental health legislation Mental health lists admission process, [3.70] primary goal, [3.60] Mental Health Review Board (Vic) community treatment orders, [5.40] criteria for decision-making, [5.30] main functions, [5.30] members, [5.30] Mental health tribunals — see also Mental health tribunals Australian, [4.70], [4.80] differences between jurisdictions, [4.90] mental health and criminal justice system, [4.90]

| M

role of Mental Health Review Tribunal, [4.90] Mental Hygiene Authority (Vic), [2.70] Mental illness changing views of, [1.10], [2.20] circumstances deemed not to be, [1.100], [1.120], [1.130] community perceptions of, [2.80], [2.100] criminal justice system, link with, [2.20], [2.130] definition — see Definition of mental health deviance, [2.90] impact on Australian community, [2.80] nonpsychotic, [1.50] psychiatric disability, [1.60] psychotic, [1.50] recovery from, [2.120] sentencing and — see Sentencing social and economic disadvantage and, [2.80] social deviance, as, [2.90] statistics in Australia, [2.80] stigmatisation, [2.100], [2.110] reduction of stigma, [2.210] terminology, [1.10] training judiciary on impact of, [3.270] treatment — see Treatment of mental illness Mental impairment defence, [2.150], [2.160] definition in Criminal Code Act 1995 (Cth), [1.90] standard of proof, [2.160] therapeutic jurisprudence view, [3.20] verdicts possible, [2.160] Mentally ill offenders assessment of, [2.180] Australian developments, [4.70], [4.100] criminal responsibility, [2.150], [2.160] division of powers in relation to, [4.80] fitness to stand trial, [2.180] global responses, [4.10], [4.20] mens rea, [2.150] mental impairment defence, [2.150], [2.160] sentencing — see Sentencing traditional mechanisms for dealing with, [2.150], [3.10] transinstitutionalisation, [2.140] Multidisciplinary approach ARC List, [7.70] community treatment orders (Vic), [5.40] Magistrates Court Mental Health Diversion List (Tas), [4.230] mental health courts, [4.40] committee to facilitate design, [3.90] multidisciplinary teams, [4.40] 197

Criminal Courts and Mental Illness drug courts, [3.40] future of, [7.130] international developments, [4.30] mental health — see Mental health courts objective, [3.40] other models, [3.20], [3.40] procedural justice and, [3.50] therapeutic jurisprudence, [2.200], [3.20], [3.40]

N National Community advisory group on Mental Health, [2.70] National Mental Health Plan classification systems used, [1.50] funding for, [2.70] National Mental Health Policy, [2.70] New South Wales Barclay Report, [2.70] community treatment, [4.130] definition of mental illness, [1.110] diversion programs, [4.100], [4.130] mental health legislation, [4.80] mental health nurses working in courts, [4.130] Mental Health Review Tribunal, [4.80] Richmond enquiry into NSW psychiatric system, [2.70] specialist lists not operating, [4.130] Northern Territory definition of mental illness, [1.120] diversionary programs not operating in, [4.100] mental health court not operating in, [4.100] mental health legislation, [4.80] review of Mental Health Act, [4.80] Not guilty plea ARC List (Vic), effect, [5.120] fitness to stand trial, [2.170] trial where, [2.170]

P Parsons, Talcott, [2.90] Planning and administration ARC List, [7.30] mental health courts, [3.90] Post-traumatic stress disorder case study, [App 1.CS1] WWI shell-shock, [2.20] Principles for the protection of persons with mental illness and the improvement of mental health care, [4.20] Problem-solving courts alternative to adversarial method, [3.40] Australian developments, [4.80] 198

Procedural justice due process rights, [3.220] mental health courts, [3.220], [3.230] problem-solving courts, [3.50] Psychiatric disability definition, [1.60] Psychopharmacotherapy (drug therapy) deinstitutionalisation and, [2.60] psychopharmacology movement, [2.60] Thorazine (Chlorpromazine), [2.60] treatment of mental illness, [1.50], [2.60]

Q Queensland definition of mental illness, [1.100] Drug Court evaluation study, [App 5.10] Mental Health Court, [4.30], [4.100], [4.110] establishment, [4.110] not problem-solving court, [4.100], [4.110] primary role, [4.110] referrals to, [4.110] mental health legislation, [4.80] Mental Health Review Tribunal, [4.80] review of Mental Health Act, [4.80] Special Circumstances Court, [4.120]

R Recidivism age and, [3.280] ARC List reducing aim of, [5.90], [5.110] study on — see ARC List recidivism study definition, [3.280] deterrence, ineffectiveness of, [2.190] diversion programs and reduction in, [2.210], [3.60] factors influencing, [3.280] gender and, [3.280] mental health courts and, [3.60], [3.280], [3.290] Australian literature, [3.280] US studies, [3.290], [4.40] mental illness and, [3.280], [3.290]

| S

Index Recidivism — cont proportionality of sentence and, [2.190] SA Magistrates Court Diversion Program study, [4.170] studies on, [3.280]–[3.300], [App 5.60] ARC List — see ARC List recidivism study ethical considerations, [App 5.70] literature review, [3.300] markers of program success, as, [App 5.60] mental health court participants, [3.290] methods used, [3.300], [App 5.60] US studies, [3.290], [4.40] therapeutic jurisprudence and reduction of, [6.10] Victoria, high rates of, [5.50] Recovery from mental illness complete recovery, [2.120] concept of, [2.120] process and outcome, [2.120] social recovery, [2.120] Rehabilitation diversion programs and, [2.210] mental health courts and, [4.40] Repeat offending — see Recidivism

S Segregation of mentally ill persons mental health courts, [3.240] traditional treatment, [2.20] Senate Select Committee on Mental Health, [4.70] Sentencing decision-making body, [4.80] deterrence, [2.180], [2.190] diversion programs, [2.200], [2.210] goals of, [2.180] guidelines, [2.180] individual support plan participation taken into account, [5.200] “just deserts” theory, [2.190] mentally ill offenders, [2.180], [2.190] causative role of mental illness, [2.190] ineffectiveness of, [2.190], [2.200] traditional approach, [3.10] methodology, [2.190] mitigating factors, [2.190] preventative detention, [2.190] proportionality, [2.190] purposes of Act (Vic), [2.180] rehabilitation, [2.210] retribution, [2.190]

Verdins principles, [2.190] Sick persons role in society, [2.90] Social deviance deviance, meaning, [2.90] functions of deviance, [2.90] mental illness as, [2.10], [2.90] South Australia definition of mental illness, [1.100] diversionary approach, [4.100], [4.140] Guardianship Board, [4.80] Magistrates Court Diversion Program, [4.150]–[4.170] aims of program, [4.160] average time of participation, [4.160] Clinical Advising Team, [4.150] Clinical Liaison Team, [4.150] evaluations, [4.170] procedure for entry into, [4.160] recidivism study, [4.170] voluntary participation, [4.160] Mental Health Court diversionary list, [4.140] mental health legislation, [4.80] Standard Minimum Rules for the Treatment of Prisoners, [4.20] Stigmatisation of mental illness, [2.100], [2.110] due process rights and, [3.220] Link and Phelan’s components, [2.100], [2.110] mental health courts and, [3.220], [3.240] process, [2.100], [2.110] reduction of stigma, [2.210] Substance abuse ARC List case studies, [App 1.CS1]–[App 1.CS3] co-morbid diagnoses, [2.140], [3.60] ARC List diagnostic criteria, [5.130] disorders, community perceptions of, [2.110] drug courts, [3.40] mental health courts, [3.90] reducing among offenders, [3.60] support services, [3.140] treatment centres, linkages with, [3.140] mental illness definition excluding, [1.100], [1.130] recidivism and, [3.280] Sustainability ARC List, [7.120] mental health courts, [3.180] 199

Criminal Courts and Mental Illness

T Tasmania definition of mental illness, [1.120] diversionary approach, [4.100], [4.140] Forensic Mental Health Court Liaison Officer assessment by, [4.220] provision of information to court, [4.230] Forensic Tribunal, [4.80] Hobart Magistrates Court Mental Health Diversion List, [4.180]–[4.240] aim, [4.190] assessment for, [4.220] court supervision of offender, [4.230] eligibility for participation, [4.200] evaluation, [4.240] pilot, [4.190] referral to, [4.210] treatment plan, [4.220] Victorian ARC List modelled on, [4.180], [5.110] voluntary participation, [4.200] mental health legislation, [4.80] Mental Health Lists, [4.180] Mental Health Tribunals, [4.80], [4.180] Therapeutic jurisprudence aim to reform law, [3.20] alternatives to mental health courts, [3.270] Australian developments, [4.70], [4.80] categories of law and, [3.20] coining of term, [3.20] concept of, [3.10], [3.20] cost benefit arguments for, [6.10] criticisms of, [3.30] diversion programs, [2.200], [2.210] flexibility and practicality, [7.130] future of, [7.130] legal actors, role of, [3.20] legal procedures, [3.20] legal rules, [3.20] mental health courts — see Mental health courts non-adversarial approach, [3.20] non-judicial role of judiciary, [3.30] paternalism and coercion, [3.30], [3.190] problem-solving approach, [3.10] problem-solving courts, [2.200], [3.20], [3.40] procedural justice and, [3.50] recidivism, reduction of, [6.10] research, lack of, [3.30], [3.260] specialist courts, [3.10], [3.40] therapeutic, meaning, [3.20] therapeutic or anti-therapeutic results, [3.20] traditional approach challenged by, [3.10] Victoria, [5.50] 200

Transinstitutionalisation, [2.140]

Treatment of mental illness asylums, [2.20], [2.30], [2.70] Australian perspective, [2.50]–[2.80] bio-determinist model, [2.20] care in the community, [2.60] civil libertarian movement, [2.50] clinical practice focusing on, [1.50] deinstitutionalisation, [2.30]–[2.80] electric convulsion therapy, [1.50] heredity-based model, [2.20] historical perspectives, [2.20]–[2.70] inhumane, criticism of, [2.50] lack of consensus on what constitutes mental illness, [2.10] lobotomy, [2.20] National Mental Health Policy, [2.70] overview, [2.10] psychopharmacology movement, [2.60] psychopharmacotherapy, [1.50], [2.60] psychotherapy, [1.50] purging and bloodletting, [2.20] realigning the humours, [2.20] separation and segregation, [2.20] timeline summarising, [2.70] Victorian experience, [2.70] Treatment supports and services ARC List, [7.80] mental health courts, [3.140]

U United Kingdom Bradley Report, [2.70], [4.60] cross-governmental multi-agency approach, [4.60] historical treatment of mental illness, [2.20], [2.30] mental health courts, [4.60]

United States Broward County Mental Health Court, [3.210], [4.40] mental health courts, [3.60], [3.80], [4.40] essential elements, [3.80]–[3.180] multidisciplinary teams, [4.40] recidivism studies, [3.290], [4.40] rehabilitation, [4.40]

V Verdict mental impairment defence pleaded, where, [2.160] Verdins principles, [2.190]

Victoria ARC List — see Assessment and Referral Court (ARC) List (Vic)

Index Victoria — cont community treatment orders, [5.40] Court Integrated Services Program, [5.80] merger of resources with ARC List, [7.50] role in ARC List, [5.180], [5.190] Crimes (Mental Impairment and Fitness to Be Tried) Act 1997, [2.170] definition of mental illness, [1.100], [1.130] deinstitutionalisation, [2.70] Department of Mental Hygiene, [2.70] diversionary approach, [4.100], [4.140] fitness to stand trial, [2.170] Health Department of Victoria, [2.70] Magistrates’ Court, [5.60] ARC List — see Assessment and Referral Court (ARC) List (Vic) Court Integrated Services Program, [5.80], [5.180], [5.190] Mental Health Court Liaison Service, [5.70] pilot Mental Health List, [5.50] specialist courts/Lists, [5.60] Mental Health Act 1959, [2.70] Mental Health Act 2014, [1.100], [1.130], [2.70] mental health legislation, [4.80] Mental Health Review Board, [5.30], [5.40] community treatment orders, [5.40] Mental Health Tribunal, [4.80], [5.20] Mental Hygiene Branch/Authority, [2.70] previous forensic options, [5.40] previous initiatives, [5.20]–[5.40]

| W

need for change, [5.50] Public Health Division of Health Commission, [2.70] recent initiatives, [5.10] Senate Select Committee on Mental Health, [5.50] therapeutic jurisprudence principles, [5.50] timeline of treatment of mental illness, [2.70]

Voluntary participation ARC List, [7.70] informed choice, [3.130], [3.200], [7.70] mental health courts, [3.130], [3.200] competence of participant, [3.210]

W Western Australia definition of mental illness, [1.110] diversionary approach, [4.100], [4.140] Mental Health Court Liaison Service, [4.250] mental health legislation, [4.80] Mental Health Review Board, [4.80] Wexler, Professor David, [3.20]

World Health Organisation creation of, [2.30] International Classifications of Disease (ICD-10), [1.50] World Federation for Mental Health, [2.70]

201