Chapter 13 - Mental health and the criminal justice system
In this chapter the committee considers issues that
arise when people with mental illnesses come into contact with the criminal
justice system. The publicity given to critical incidents involving mentally
disturbed people might lead the public to believe that a high proportion of
people with mental illness commit crimes, but this is not the case.
Nevertheless, people with mental illness comprise a disproportionate number of
the people who are arrested, who come before the courts and who are imprisoned.
The reasons for this, the legislation governing the treatment of people with
mental illness who commit crimes and their treatment by the criminal justice
system, are dealt with in this chapter.
The Commonwealth and each state and territory have
provisions in their criminal laws for the prosecution and disposition of
persons with a mental illness or an intellectual disability.
These laws provide that unsoundness of mind is a
defence to a criminal charge. Application of the laws means that some persons
charged with criminal offences are judged not fit to enter a plea, or are found
not guilty because of mental disorder, and become 'forensic patients' (The
treatment of forensic patients in discussed later in this chapter).
In most jurisdictions, criminal legislation and other
relevant acts, such as bail and sentencing acts, interact with mental health
services through the operation of mental health acts.
Law reform and human rights
The report of the National Inquiry into the Human
Rights of People with Mental Illness (the Burdekin Report), which had as its focus the human rights of people with
mental illness, reported that the rights of mentally ill people in the criminal
justice system were covered by the International Covenant on Civil and
Political Rights; the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment; and the Body of Principles for the
Protection of all Persons under any Form of Detention or Imprisonment. In
The Principles for the Protection of Persons with Mental Illness
specifically apply to prisoners. Principle 20 stipulates that they are entitled
to the best available mental health care, and to all the rights specified in
the Principles, 'with only such limited modifications and exceptions as are
necessary in the circumstances'.
Health authorities of the Commonwealth, states and
territories have developed a National Statement of Principles for Forensic
Mental Health. The Principles, which are dealt with in more detail later in
this Chapter, include the following statement:
Legislation must recognise the special needs of people with a
mental illness involved in the criminal justice system and comply with the
International Covenant on Civil and Political Rights, the United Nations
Principles on the Protection of People with a Mental Illness and the
Improvement of Mental Health Care.
The evidence demonstrates that state and territory
governments are making progress in their endeavours to incorporate or reflect
the above principle in legislation. The Queensland Government, for example,
informed the committee that a comprehensive review of the state's mental health
legislation found that the legislation reflected all significant rights safeguards.
Other jurisdictions have recently amended relevant
legislation or propose to do so. The South Australian Department of Health, for
example, stated that among its achievements was a review of the Mental Health Act and of section 269 of
the Criminal Law Consolidation Act, and New South Wales is currently
conducting a comprehensive review of the Mental
Health Act 1990 [NSW]. The Australian
Capital Territory has announced a review of the ACT Mental Health (Treatment and Care) Act.
It is not clear, however, that the reforms made in all
jurisdictions to date have been sufficient to adequately reflect the UN
Principles. The Mental Health Legal Centre Inc. (MHLC), a Victorian community
legal centre specialising in legal advice, policy and law reform, advocacy and
promotion of the rights of people experiencing mental illness, informed the
Whilst there has been some reduction in the gap between state
and territory regimes and the UN Principles, there is a long way to go ...
The MHLC also commented on the 'huge disparity between
Australian jurisdictions' and gave the following as an example:
... depending on where a person lives they may have their
involuntary detention reviewed anywhere between 2 and 8 weeks. They may or may
not have a right to legal representation; to challenge the use of ECT; to ask a
tribunal to vary their treatment, or to obtain a statement of reasons or a
transcript of their review hearing.
With regard to the right to legal representation before
Mental Health Review Tribunals, MHLC commented favourably on the law in the Northern
Territory, which mandates that the Tribunal appoints
a lawyer unless satisfied that is not necessary, and empowers the Tribunal to
order the government to pay costs.
Mental Health Courts and Court
Under their mental health acts, most jurisdictions have
established special courts or services designed to assess the mental health of
persons arrested or brought before the courts on criminal charges and to divert
for treatment those found to have a mental illness.
Queensland is the only
jurisdiction to have established a Mental Health Court, which determines mental
responsibility issues – the insanity defence or the defence of diminished
responsibility. The Court is constituted
by a Supreme Court Judge who receives expert advice and assistance on clinical
matters from two 'assisting psychiatrists'. References may be made to the Court
by the accused or the accused's legal representative, the Attorney-General, the
Director of Public Prosecutions or the Director of Mental Health. The Court is
not bound by the rules of evidence and may inform itself in any way it
considers appropriate. It may order examinations by psychiatrists and other
health professionals and may make forensic orders to provide for treatment in
the mental health system.
All states and territories have established mental
health tribunals to assess the continued detention of both civilly committed
and forensic patients in the mental health systems. The work of these tribunals has
been described as follows:
... tribunals have a very difficult task because they have to
balance competing paradigms: the criminal justice paradigm, with the
expectation that comes from that paradigm about keeping society safe and
keeping dangerous people off the streets, and the health and welfare paradigm,
which is about treating people and getting them better.
The tribunals are constituted differently in different
jurisdictions, but typically include people with legal and medical
qualifications and a member (or members) of the community. They also have
different powers; some may make determinations while others make
recommendations to the courts or the executive government. In jurisdictions
where the tribunals have an advisory role, the decision to release a person
from a custodial order will be made by a court or, in some jurisdictions, by
the Governor in Council.
The states and territories have also established mental
health liaison programs designed to assess the mental health of persons who
come before the courts.
In New South Wales,
for example, a court liaison program was established in 2002 to provide mental
health assessments and referral services to magistrates throughout the state.
The NSW Government has reported that in the 12 months to July 2004, 18 902
people were screened for mental health problems, and approximately 10 percent
(1945) of those people were referred for a comprehensive mental health
assessment. Of these, 1413 were assessed as having a severe mental illness or
disorder and, as a result:
204 people were diverted to hospital for mental
702 people were diverted to community care; and
507 were referred to custodial mental health
services in accordance with magistrates' orders.
has established a Magistrates Court Diversion Program of alternatives to
incarceration for criminal offenders.
The program provides an opportunity for eligible individuals to voluntarily
address their health or disability needs and any offending behaviours while
legal proceedings are adjourned.
The need for diversion programs and mental health
liaison services becomes clear when the prevalence of mental illness among
people who come into contact with the criminal justice system is considered.
Over-representation of people with mental illness in the criminal justice
Studies and statistics
Most people with a mental illness, including those with
major illnesses, do not commit crimes,
but people with mental illness nevertheless are over-represented in the
criminal justice system.
Numerous studies of the health of people who come
before the courts in Australia
and in other countries show that the incidence of mental illness among those
people is higher than in the general community. Two studies in particular were
brought to the committee's notice: Mental
Illness among New South Wales Prisoners (August 2003) and Victorian Prisoner Health Study (February 2003).
South Wales study found that 48 percent of reception
inmates and 38 percent of sentenced inmates had suffered a mental disorder in
the previous twelve months (A mental disorder was defined as a psychosis,
affective disorder or anxiety disorder).
When a broader definition of 'any psychiatric disorder' was used, it was found
that 74 percent of the NSW inmate population was affected. In Victoria,
51 percent of prisoners reported that they had been assessed, or received
treatment by a psychiatrist or a doctor, for an emotional or mental health
problem. Together, the studies
show that there is a much higher incidence of mental illness in the Australian
prison population than in the general population. These findings are also
consistent with those of similar studies undertaken overseas.
Despite the different methodologies used in the studies,
in some respects they produced remarkably similar results. The NSW study found,
for example, that the prevalence of 'definite' and 'probable' schizophrenia in
the prison population was between 4 percent and 7 percent, while the Victorian study reported
that schizophrenia was suspected to be present in about 7 percent of that
population. A 'best estimate' reported by the Victorian
Institute of Forensic Mental Health (Forensicare) is that 8 percent of male and
15 percent of female prisoners suffer from a psychotic illness, with 5 percent
of males and 6 percent of females suffering from schizophrenia. The NSW study reported that the
prevalence of psychosis in inmates was 30 times higher than in the Australian
Allnut found that female prisoners have a higher prevalence of psychiatric
disorder than male prisoners.
Approximately 90 percent of female reception prisoners had experienced a mental
disorder in the 12 months before their incarceration compared with 78 percent
of male prisoners; among sentenced prisoners the relevant figures were 61
percent for men and 79 percent for women.
Butler and Allnut also found that
substance use disorders were
more common among females than males in both the reception (75 per cent vs. 64
per cent) and sentenced groups (57 per cent vs. 34 per cent).
Comparisons between the incidence of mental illness
among prisoners and people in the community are based on data published by the
Australian Bureau of Statistics (ABS) in Mental
Health and Wellbeing: Profile of Adults, Australia 1997. The survey was commissioned by the
then Commonwealth Department of Health and Family Services within the context
of the National Mental Health Strategy (NMHS). According to the ABS, the
results of the survey were to assist in the monitoring of 'initiatives of the
NMHS and to provide an Australian baseline against which future activity can be
compared and evaluated'. The
survey found that 18 percent of adult Australians had a mental disorder at some
time during the twelve months prior to the survey. That figure contrasts with 74
percent of NSW prison inmates.
There are several reasons for the comparatively high
rate of mental illness among people in Australia's
prisons. The contributing factors include general disadvantage, including
poverty, homelessness and unemployment, deinstitutionalisation, substance
abuse, a lack of early intervention and a lack of mental health services in the
The Burdekin Report found that mentally ill people are
especially likely to fall foul of laws concerning drunkenness, offensive
behaviour, disorderly conduct, loitering or vagrancy (which commonly coincides
with homelessness). It was
... at least 75 percent of participants received fines and charges
in relation to behaviour that was the direct consequence of their homelessness
or mentally ill status, including: fines in relation to begging, drinking in
public and other public space offences; activities caused by extreme poverty,
such as travelling on public transport without a valid ticket or shoplifting
food or other necessities; and activities relating to one of the underlying
causes of homelessness, such as drug or alcohol dependency. This is consistent
with studies in the US
which have found a strong relationship between homelessness, mental illness and
also identified homelessness as being a cause of bringing people with mental
illness into contact with the prison system. He suggested that when there is a
campaign to make street people disappear they are eventually driven into
positions where they come into contact with the police, who in frustration put
them somewhere where they are regarded as being secure. Forensicare submitted that it is
vital for the successful community reintegration of people with a mental
illness on being released from prison that they have access to stable
accommodation. Bail applications generally require an address be stated to the
Court in order for the application to be successful and area mental health
services in Victoria
are provided on the basis of address.
The Burdekin Report noted that, once arrested, mentally
ill people may have trouble obtaining bail because they are too poor to raise
bail, because they have no fixed address, or because they do not comprehend or
comply with bureaucratic requirements.
A common theme in the evidence was that the closure of
mental health hospitals following the Richmond
inquiry of some twenty years ago has led to the incarceration of people who
formerly would have been housed in those institutions. Sisters Inside submitted
Historically, women have been overrepresented in psychiatric
facilities and underrepresented in the prison system. However, with the closure
of psychiatric institutions and increasingly overtaxed and under-resourced
community based services, Queensland
is now witnessing a marked increase in the number of women with cognitive and
mental disabilities who are being criminalised.
claimed that following the Richmond
report, governments were happy to empty out the institutions but not to put
money into the community based welfare services that were needed. He also stated that:
What has become an additional problem since the days of Richmond
is the number of people with acute mental health problems, psychiatric
problems, which are drug related, which were not at the same level 20-plus
years age when Richmond was looking at his original data.
In a study of the literature on mental illness and the
criminal justice system undertaken for the Mental Health Co-ordinating Council,
Ms Susan Henderson
reported on deinstitutionalisation as follows:
Deinstitutionalisation is considered by some people within the
mental health lobby to be responsible for the high prevalence of people with
mental illness in prison ... However, ... this perspective overlooks an alternative
explanation – that people with mental illness present other risk factors of
higher risk for imprisonment, such as substance abuse, unemployment, poor
education and low income. The confounding role of such evidence was recently
demonstrated in an Australian study that showed increased rates of inmates with
schizophrenia since deinstitutionalisation parallelled by increased rated of
imprisonment across the general population.
The Burdekin Report reported in 1993 that many people
are taken into custody or have their detention prolonged as a consequence of
their mental illness or disorder going untreated, and that:
Untreated mental illness clearly causes some people to behave
irresponsibly, irrationally or in a bizarre fashion. Sometimes this behaviour
brings people to the attention of the police; in a small number of instances
untreated mentally ill people commit violence against others.
The evidence received by the Committee indicated that
the lack of treatment for people with mental illnesses and a lack of continuity
of treatment remain major factors in the over-representation of those people in
The long and short answer is ... consumers are overrepresented in
the criminal justice system simply because they are denied access to a range of
quality mental health services which meet the consumer's individual needs and
supports them effectively in the community.
One tragic example that was related in the evidence
concerned a young man with a history of mental illness who was found not guilty
of charges of child murder and aggravated sexual assault due to mental illness.
Less than a month before the crimes were committed this person had admitted
himself to hospital fearful that he would become angry and violent. Despite a
diagnosis of schizophrenia and despite doctors warning that he was dangerous,
he was discharged after several days. These events, in the words of the
Probation and Community Corrections Officers Association, offer 'a clear
example of the tragic potential of illicit drug use and schizophrenia when
The Mental Health Council of Australia submitted that
the over-representation of people with mental illness in the criminal justice
system is partly due to the failure of the mental health system to provide
adequate support for those at risk of incarceration. The Council considers that
the mental health system has failed to help consumers and carers to access
existing services and to provide adequate crisis care.
The issues discussed above are relevant for mentally
ill people whether or not they come into contact with the criminal justice
system. However, some of the possible causes for the high incidence of mental
illness among people in the criminal justice system are intrinsic to the
Effects of incarceration
One possible reason for the high levels of mental
disorders among prisoners is the effect that incarceration, or the threat of
incarceration, may have on them.
The committee took anecdotal evidence that
institutionalisation itself and the control mechanisms within prisons adversely
affect inmates' mental health. Particular mention was made of segregation units
and safe cells. One witness,
Justice Action, claimed that it had evidence of prison-induced insanity. Another witness provided details
of a specific case that occurred at the Brisbane Women's Correctional Centre,
which indicated that prison in general and seclusion in particular may have
deleterious effects on prisoners who already suffer from a mental illness.
The deleterious effect of incarceration was remarked
upon by Butler and Allnutt in their
study of mental illness among NSW prisoners:
Incarceration results in the loss of many person freedoms taken
for granted in the community, including social supports, inter-personal
relationships, employment, social status, and social role. These losses are
commonly correlated with depressive disorder. At the time of reception almost
one-quarter were diagnosed with mood disorder ...
The committee has also noted a comment made in a
submission from Professor Gavin
Andrews, Scientia Professor of Psychiatry,
UNSW at St Vincent's Hospital, which suggested that
incarceration may be a factor in the incidence of some mental illnesses among
prisoners. He submitted that:
Anxiety and depression are three times more common among inmates
than in the matched general population. They are seldom the reason why the
crime was committed and may give an indication of the person's background or
current predicament ... 
Role of sentencing
Another reason for the over-representation of mentally
ill people in prison is that, in the absence of programs to which offenders may
be referred, courts may have no option other than to sentence offenders to
prison. This issue was brought to the committee's attention by the Northern
Territory Legal Aid Commission and the Northern Territory Community Visitor
Many people who suffer from a mental illness are not suitable
for community work or home detention which leaves jail as the only option.
To the extent that other Australian jurisdictions have
established programs designed to divert mentally ill offenders from gaol, this
may not be as common a cause nationally as it was in the past. Diversion
programs, however, are useful only to the extent that there are practical
alternatives to which offenders can be diverted. Diversion programs are
discussed in more detail later in this Chapter.
Another aspect of the role that sentencing plays in the
over-representation of people with mental illness in the criminal justice
system is the tendency in some jurisdictions towards the imposition of longer
sentences. Professor Puplick
informed the committee that:
Mental health problems can be compounded by sentencing
practices. Longer sentences inevitably mean a greater habituation to prison
environments and a diminished capacity to reintegrate into the external
community, especially for those already facing problems of social competence.
In this sense longer sentences contribute to the problem of recidivism – thus
the endless cycle starts!
Access to the legal system
People with mental illnesses are vulnerable in society
and in prison. The Office of the Public Advocate – Queensland
(OPA-Q), for example, in a paper submitted to the inquiry, referred to a
Victorian Government study, Mental
illness and violence, that had found that almost one fifth of people with a
psychotic illness had been a victim of violence in the previous twelve months.
The OPA-Q also quoted a study in which it is argued
that if the experiences of victimisation are not resolved to the satisfaction
of the victim, these experiences may later precipitate critical mental health
The chances of achieving an outcome satisfactory to a
mentally ill victim are not good for a number of reasons, including the
victim's perceived unreliability as a witness and the victim's limited access
to legal assistance. Apart from general disadvantages such as poverty and
homelessness that would limit access to legal redress, many mentally ill
people, even if legal aid is available, are not able to take advantage of that
Mental health problems pose a serious challenge to the
provision of adequate legal advice. The problems arise at all points in the
process of providing legal assistance, from the provision of initial advice to
critical incidents. Some of the reasons given for these difficulties are
clients' inability to inform their lawyers of their situation, their paranoia,
for example, unwillingness to speak with a lawyer lest the phone be tapped, and
unwillingness of many to accept that they suffer from an illness. Ms Vivienne Topp, a lawyer and
policy worker employed by the Mental Health Legal Centre, stated, however, that
one of the Centre's major concerns is 'the lack of rigour applied in dealing
with people's complaints'.
Whatever the reasons, people with mental illness
generally will not have legal redress for cases of victimisation. This may lead
to critical mental health incidents in which mentally disturbed individuals
come into contact with the criminal justice system.
Role of the Police
Mentally ill people who come into contact with the
criminal justice system usually first come into contact with the police either
when they are detained for their own safety or the safety of others in a
critical incident, or, more often, when they are arrested for a misdemeanour or
a petty crime. One witness has described police officers as 'the front line
mental health practitioners'.
Although critical incidents are relatively rare, they
naturally attract publicity because they occasionally result in the death or
injury by shooting of a mentally disturbed person, or to the death or injury of
other persons, including police officers.
Police usually have to deal with these critical
incidents without any support from mental health professionals. This is true
especially of incidents that occur after hours, or when mental health
professionals will not attend because their life or safety may be endangered. In regional and especially in
remote areas, the only emergency service likely to be available to respond in a
crisis is the police service.
More often the situations in which police deal with
people with mental illness do not involve violence or danger, but even in those
situations their actions can have serious consequences. One witness whose 21
year old son who had a history of mental illness and who committed suicide
informed the committee that:
My son's behaviour also
attracted the attention of one rather vindictive police constable who arrested,
charged and remanded him on a charge that would later be disproved in the
Dandenong Magistrate's Court. The police paid all the court costs but that
didn't spare my son the entire ordeal, including the seven weeks he spent in
Another witness, the Mill Park Family Support Group,
Many members of the Group have had loved ones imprisoned due to
a total misunderstanding of their behaviour and actions. Police are often told
that a person has a mental illness, but they still take them away and often
hold them over night. This is not only extremely frightening, but also a waste
of police resources and community funding.
Some carers in Victoria
expect that crisis assessment teams will respond in an emergency, but that is
not necessarily the case – the teams are not an essential service like police
and ambulance services.
Community mental health teams in NSW likewise may not attend critical
The Police Federation of Australia stated that several
jurisdictions had developed memoranda of understanding (MOUs) in relation to
cooperation of health and police services, especially for dealing with crisis
situations, but that these MOUs are often not complied with by mental health
staff and hospitals. The Federation recommended that the MOUs be included in
The Federation also raised concerns regarding the
response to critical incidents involving the mentally ill. As mentioned above,
these incidents sometimes result in fatalities:
A report released in June 1998 on police shootings showed that
more than half the 41 people shot dead by Australian police officers since 1990
were under the influence of drugs or alcohol and one third were depressed or
had a history of psychiatric illness – a clear indication that the system is
The Queensland Government is attempting to address the
issue by establishing Mental Health Crisis Intervention Teams that are intended
to involve both the police and mental health personnel acting together to
de-escalate crisis situations so as to resolve the situations safely and
Police frequently spend hours sitting in hospitals with
apparently mentally disturbed individuals awaiting mental health assessments,
but the individuals are often found not to be ill under the provisions of the
mental health legislation. Police resources get tied up in other ways: using
police resources for transporting mentally ill people; having people abscond
from institutions because of poor security; and repeated use of the 000
emergency number by mentally disturbed individuals.
The Police Federation advocated better training for
police regarding their obligations to mentally ill people, but it was concerned
that better training might be counter productive. For example, the Federation
suggested that mental health professionals might not respond to incidents on
the basis that the police were trained to deal with them. The Federation also
was concerned that the public might take the view that the police were
thoroughly trained when in fact they could not be expected to be mental health
experts. Nevertheless, it
recommended training for police officers not only in regard to their
obligations to mentally ill people but also in relation to dual diagnosis.
A witness whose 29 year old son had been shot dead by a
police officer stated that:
If the police service is to continue to be left to deal with the
results of an inadequate health service, they need to be given whatever
training is needed to help them to deal appropriately with people with mental
Another witness stated that:
... ambulance and police officers need to have competencies in
handling the many and varied circumstances they confront. Managing any violence
is only one of the potential scenarios. They will most likely also confront
persons in various stages of distress ...
For the sake of the officer, the patients, the families and
others they come in contact with, these officers need up to date training ...
They also need to care for their own mental health.
The allocation of more resources to mental health,
including more beds in hospitals, more staff and better community programs,
would relieve police of the excessive burden of care for the mentally ill,
returning the care of the mentally ill to where it can best be managed, by
mental health professionals.
Management and treatment of people with a mental disorder in the criminal
The National Statement of
Principles for Forensic Mental Health
The National Statement of Principles for Forensic
Mental Health sets down 13 principles for dealing with offenders or alleged
offenders who have a mental illness. The Statement was endorsed by the National
Mental Health Working Group of the Australian Health Ministers' Advisory
Council and was presented to the Correction Service Administrators Conference
in May 2003. The Australian
Government informed the committee that it was working with the state and
territory governments and with the corrections sector to develop approaches to
implementation of the principles.
In addition to the need for Australian laws to conform
to the UN Principles, the Statement covers matters such as the proper provision
of mental health care for offenders, ethical treatment, skills of the workforce
and transparency and accountability.
The Statement's 'target group' includes people referred
for psychiatric assessment or treatment and people found not fit to enter a
plea or found not guilty by reason of mental impairment. The target group also
includes people in mainstream mental health services who are a significant
danger to others and who require the involvement of a specialist forensic
mental health service.
As discussed earlier in this chapter, in most
Australian jurisdictions mentally ill people may be diverted by the courts from
the criminal justice system to the health system. Magistrates' courts may make
orders for treatment of offenders following advice received from the relevant
court liaison service. Diversion may result in people who would otherwise be
imprisoned being released, perhaps subject to a community treatment order. In
general, only those persons facing minor summary offences would be released.
In South Australia
a specialist sentencing court has been established to which mentally ill
offenders may be directed. The South Australian Magistrates Court Diversion
Program (mental impairment) commenced in 1999 as a pilot, and subsequently was
funded by the South Australian Government to continue and expand its operation.
The program is designed to meet the needs of individuals appearing before the
Magistrates Court who have committed certain minor and summary offences and who
have impaired intellectual functioning. The program facilitates a range of
health and other appropriate services to assist those individuals:
Participants are being successfully diverted away from long term
involvement with the Criminal Justice System by introducing or re-establishing
links with treatment and support services while highlighting both the mental
impairment and criminogenic needs of participants referred by the Court.
People who have been charged with indictable offences,
especially offences involving serious violence, and who have been found not fit
for trial or acquitted on grounds of mental impairment, are likely to be
ordered to be treated in a secure facility. Traditionally such people are
categorised as 'forensic patients'.
Forensic mental health care
Forensic patients constitute a small group in relation
to the total prison population and to the prison population with a mental
illness. Other people may,
however, be treated in forensic mental health facilities. Seriously ill people
who were not identified as being mentally ill when they were tried and
convicted, people who become seriously ill while in prison, and people in the
community who pose a threat to themselves or others may well be confined within
a secure facility.
There are differences between these groups of patients,
in that people who were sentenced by the courts will be released when they have
served their term of imprisonment, whereas people who were detained without
being sentenced face indefinite detention in a secure mental health facility
and may in fact never be released.
All jurisdictions make some provision for the care of
forensic patients, but that provision is inadequate, both for secure facilities
and for follow-up care in the community.
As at 30 June
2002, in Australia
there were 424 inpatient beds for forensic patients. Although NSW had the most beds
(166) it seems that the best-resourced facilities for caring for forensic
offenders are in Victoria,
where a statutory body, the Victorian Institute of Forensic Mental Health
(Forensicare), is responsible for providing forensic mental health care.
Forensicare, which has been described as a world leader
in forensic mental health,
provides a number of services, including managing a 'state of the art' 100 bed
secure inpatient facility, the Thomas Embling Hospital (TEH). Forensicare also
provides the courts with opinions on the mental health of persons charged with
offences, and treats prisoners and individuals for whom the courts have
mandated psychiatric treatment and other individuals who are deemed to present
a serious risk of serious offending.
However, even in Victoria
resources are inadequate. Forensicare stated that forensic mental health in Victoria
has a pressing and increasing requirement for additional inpatient beds to meet
the needs of the criminal justice system. Forensicare stated that although TEH
opened as recently as 2000, its capacity was based on a forecast peak prison
population of 2500. By June 2004 the prison population had increased to 3624,
and imprisonment rates had increased from 66 per 100 00 to 94 per 100 000 of
the population.  Nationwide, there appears to be no
forensic facilities for adolescents, meaning treatment regimes for this group
involve transfers back and forth between health facilities and detention,
Another factor affecting the higher-than-expected
demand for TEH services is that its bed capacity was determined before the
reform of Victoria's
mental health legislation in 1997. Forensicare informed the committee that:
The Mental Impairment and
Unfitness to be Tried Act 1997 is a huge improvement on the earlier system
of detaining people indefinitely at the 'Governor's Pleasure', but it has led
to more people (appropriately) using the defence. Overseas experience suggests
that the current rates of disposition will increase.
The committee was informed, however, that Trieste
in Italy, a
region of 1.1 million, had only one forensic patient in January 2006. The level
of demand for forensic beds may thus be related to more than just the size of
the prison population.
Forensicare informed the committee that step-down
medium secure/intensive care beds are required, and identified additional needs
including the establishment of a unit for elderly forensic patients and an exit
unit to manage forensic patients within the community.
Given that the best-resourced jurisdiction has a
'pressing and increasing requirement' for more facilities, the situation in the
other states and territories must be far from ideal. There have, however, been
initiatives taken in all Australian jurisdictions to try to address the
New South Wales
and Tasmania are currently
constructing secure mental health units, and South
Australia is planning a similar facility. Queensland
has recently opened a medium and high security forensic facility in Townsville
in the north of the state to enable mentally ill offenders to receive treatment
closer to their communities.
and the Northern Territory face
particularly difficult challenges in providing for forensic patients owing to
their geography and large indigenous populations. In the Northern
Territory there is not a dedicated forensic mental
health facility and 'persons found not guilty of a charge due to mental
impairment may be subject to a custodial supervision order at a correctional
facility'. There are several
beds for forensic patients in Western Australia
and the Western Australian Government has made provision in its Mental Health Strategy 2004-2007 to
increase by twelve the number of acute secure beds at Greylands
It seems, however, that the planned facilities when
built will still not meet ever-growing demand. In New
South Wales for example, the number of forensic
patients increased from 21 in 1982 (0.7 percent of the prison population) to 100
in 2003 (1.1 per cent). Professor
Mullen, the Clinical Director of
Forensicare, in answer to a question about the demand for beds at the TEH,
responded as follows:
So what actually happens is what often happens in any acute
medical service: the number of available beds determines the level at which you
set your admission, rather than some notion that you would eventually find
enough beds for the service. I do not think that is a practicality.
Female forensic patients
There is a pressing need to improve treatment of women
prisoners, with the conditions in which they are currently held appearing
seriously inconsistent with desirable clinical practice. In Australia
there are few separate facilities for female forensic patients. In New
South Wales there is no separate dedicated forensic
hospital for either male or female prisoners and in Queensland:
It is also clear that the forensic unit at John
Park, is overcrowded and not
generally available for women prisoners with serious mental illness who may
benefit from its services. There is a shortage of mental health beds in the Queensland
health system generally for security patients. Because of the inadequate
capacity or the reluctance of relevant authorities to admit and treat acutely
ill patients, it appears that on more than a few occasions, women prisoners
with acute mental illness may be being inappropriately detained and receiving
inadequate treatment in either the CSU [Crisis Support Units], DU [Detention
Units] or health units in the women's prisons.
In Victoria there is a psychiatric unit in the men's
prison that 'has at least some potential to provide a therapeutic and holding
system for people with mental illness' if they are not able to be admitted to
the TEH. There is not a
psychiatric unit in the women's prison (Deer Park),
Sadly, a number of them [women prisoners with a mental illness]
finish up in the block which is designated primarily as a control system and
not as a mental health care system.
When the committee members visited the Brisbane Women's
Correctional Centre (BWCC) they were informed that women at the gaol typically
wait three weeks after being assessed as needing a bed in the 'men's' John
Oxley inpatient facility and that 10 percent of the female prison population of
250 are in secure units. The BWCC employs one senior psychologist and four
others who conduct assessments and some group-based programs in cognitive
skills, but there is no capacity to engage in long-term psychological
intervention. A psychiatrist visits, mostly to review medication. There is also
a full-time drug and alcohol counsellor.
Report of the Anti-Discrimination
The Anti-Discrimination Commission Queensland published
a report Women in Prison in March
2006. The Commission found that:
Many women with mental illness are inappropriately detained in
prison while their mental health needs are left unattended. Women prisoners
have a much higher rate of mental health problems than men prisoners, but their
needs are not presently addressed. A significant increase in resources is
necessary if women with mental illness are to be properly dealt with within the
correctional system. Proposed changes to crisis support units, including a
reduction in strip-searching, are welcomed, but address only part of this
problem. Much more is needed.
The Commission made seven recommendations on mental
health matters. These covered: more diversionary programs for women; addressing
systemic issues to reduce the over-representation of women with mental illness
in state prisons; enhancement of services, including increasing the number of
beds in secure psychiatric medical facilities; limiting seclusion; addressing
substance abuse, mental illness and sexual assault issues; training of prison
officers; and provision of step-down accommodation facilities.
The report also recommended that there be an
That the Human Rights and Equal Opportunity Commission conducts
a review into how the justice and prison systems across Australia
are dealing with women with mental health issues.
Costs of facilities
The provision of facilities to treat forensic patients
and prisoners with serious mental illnesses is resource intensive and the cost
of the facilities and of caring for the health of prisoners is met by the state
or territory governments. The daily cost of providing a bed in an Australian
forensic facility was $542 in 2001-2002. Costs ranged from $372 in NSW to $938
in the Northern Territory.
The Northern Territory Government submitted that
forensic patients should be accommodated in a safe and therapeutic environment
oriented toward rehabilitation and community reintegration, but that
establishing such a facility in a very small jurisdiction would require a
substantial capital investment and operational funding.
In relation to the relative costs of caring for
mentally ill people, Professor Christopher Puplick, a former chair of the
Central Sydney Health Service, informed
the committee that:
It costs between $50 000 and $60 000 a year to maintain a
prisoner in jail, but up to $200 000 per year to maintain a mental health bed
in the NSW public health system.
... 'treating' a mentally ill person by incarceration rather than
by hospitalisation is three or four times cheaper to the State budget.
Principle three of the National Statement of Principles for Forensic Mental Health states,
in relation to the responsibilities of the health and justice systems, that
'mental health services should be staffed by mental health personnel employed
by a health service ... not correctional agencies'.
Although health authorities throughout the Commonwealth
agree that the management of forensic mental health is a matter for the health
authorities, it is not clear that all jurisdictions necessarily accept that
argument. In Queensland, for
example, the custodial departments are responsible for the mental health of
prisoners, but services are purchased from external suppliers, 'reflecting an
important separation between the provision of health services and the custodial
provider'. In New South Wales a
statutory corporation, Justice Health, which reports to the Minister for
Health, is responsible for providing medical services to prisoners 'in
partnership with the Department of Corrective Services'.
Allnutt reported that the majority of mental health providers within the NSW
correctional environment are 'obligated to conform with the correctional
ethos'. They commented that:
This is fertile ground for conflicting priorities between
clinical needs (the health priority) and security (the custodial priority). The
correctional approach to the management of difficult behaviour can be the
antithesis of the mental health approach.
Treatment in prison
Although it is generally agreed by health authorities
that prisoners requiring inpatient mental health care should be transferred
from prison to an appropriate mental health facility located beyond the
geographical boundaries of the prison and run independently from correction
services, this will not occur in
the absence of sufficient appropriate facilities. Moreover, relatively few
prisoners with a mental illness are so seriously ill that they require
inpatient treatment, but they still require treatment, and that treatment, if
provided, will generally be in gaol. The availability and adequacy of treatment
for mentally ill people within Australia's
prisons are therefore important matters.
The ACT Government stated that the National Principles
provide a clear framework for appropriate care within corrections facilities. The first of those Principles, for
example, reads as follows:
Prisoners and detainees have the same rights to availability,
access and quality of mental health care as the general population. Where
health facilities are provided within a correctional facility, there should be
appropriate equipment and trained staff, or arrangements made for such services
to be available, at a standard comparable to regional and community standards.
Services should ensure equality in service delivery regardless
of an individual's age, gender, culture, sexual orientation, socio-economic
status, religious beliefs, previous conditions, forensic status, and physical
or other disability. This Principle of Equivalence applies to both primary and
specialist mental health care.
NSW Health informed the committee that it 'continued to
provide high quality in-reach mental health programs across all correctional
facilities', but the evidence is
that treatment of mental illnesses in Australian prisons is inadequate.
Forensicare, for example, stated that, 'Adequate mental health services are
rare in prison'. That judgement
is supported by evidence submitted by Sisters Inside, an organisation which
advocates for the human rights of women in the criminal justice system, which
stated, in relation to mental health resources allocated to Queensland prisons,
In our prison system at the moment we have ... 1.5 mental health
workers for 3500 prisoners. Prisons have become the de facto psychiatric units
but with no mental health professionals.
Professor Puplick informed the committee that it
appears that only 8 percent of men and 23 percent of women who had been
diagnosed with some form of mental illness were on psychiatric medication while
In fairness I should mention that while in prison many of these
same people will probably be better fed and housed and have better access to
health services than at almost any other time in their lives – itself a
shocking indictment of our general level of services for the mentally ill in
also commented on the adequacy of mental health services to people in gaol:
NSW Health is providing psychiatric care in prisons, albeit not
sufficiently, but almost certainly more than was available to prisoners before
they came to jail.
Andrews stated that priority should be given
to providing treatment in gaol:
Once we get 80 percent of people with mental disorders getting
treatment [the level of treatment of most physical disorders] we could look at
diversion programs for those in the criminal justice system. Until then let us
be proactive in arranging good treatment in jail.
Nevertheless there are difficulties involved in
providing treatment in a setting that is not necessarily conducive to effective
treatment of people with mental illness. Effective treatment in prison may be
impossible because prison officials focus on security and placement issues
rather than treatment. The
Mental Health Legal Centre stated that men and women with mental health issues
report that they are reluctant and even frightened to reveal them because there
is little support and lots of discrimination. The Australian Doctors' Fund
submitted that imprisonment of the mentally ill is a barrier to the delivery of
good psychiatric care.
In a supplementary submission Professor
Andrews stated that some people believe that
people who meet criteria for a mental disorder should be in hospital rather
than in jail. If that were done, however, a substantial proportion of the
present jail population would have to be accommodated in secure mental health
units. He suggested that as there is no test for a mental disorder and the
diagnosis is based on symptoms, presumably most prisoners when they recovered
would continue to complain of symptoms until their jail sentence had expired,
for to do otherwise would result in their being returned to jail.
Treating offenders in hospital rather than imprisoning
them also raises the question of whether offenders are able to avoid the full
consequences of their criminal acts.
Involuntary treatment and seclusion
Involuntary treatment of prisoners raises human rights
TEH also provides involuntary treatment of prisoners with mental
illness, as under mental health legislation Victorian prisons are not able to
undertake such treatment. Victoria is of the view that involuntary treatment in
prisons without clear separation of custodial and treatment requirements is
contrary to the principles contained in the Mental Health Act and in breach of
international human rights obligations.
told the committee that the incarceration of forensic patients in New
South Wales is in 'clear breach of domestic
legislation, the National Medical Health Forensic Policy and the United Nations
Declaration of Human Rights'.
Clinical Director of Forensicare, stated that in the past, when it was possible
to treat mentally ill prisoners compulsorily in gaol, medications had been
used, not for treatment but for control and punishment. He stated that although
there are many short-term solutions which may appeal, he hoped that the
compulsory treatment of patients within prison would be resisted.
Seclusion of prisoners who have been assessed as being
at risk of suicide, self-harm or as a danger to others raises greater concerns.
The committee received evidence from Sisters Inside about the 'Crisis Support
Unit S4' isolation cells at the Brisbane Women's Correctional Centre (BWCC) and
the Chair and one other member of the committee subsequently visited the gaol.
At the time, all but one of the nine women in these cells were affected by a
serious mental illness. The cells have been designed so that there are no
furniture or design features that would allow them to harm themselves. The
prisoners are locked down for 19 or so hours a day, are given only a hospital
gown to wear and are under constant video surveillance.
The Chair was advised by management that strip searches are mandatory
for reception, whenever isolation cell inmates are escorted out of their cells
and on return, after contact visits, whenever leaving an area in the facility
such as the health centre, when placed on observation and every evening. The
requirement for a further three strip searches at meal break times had recently
It is alarming to note that though these women are
regarded as at very high risk of self harm, many were on relatively short
sentences and would soon be released. The rate of recidivism amongst these
women was said to be very high.
The process of isolating such persons and placing them
in seclusion appears effectively to prevent suicide and may prevent disruption
to other inmates, but is hardly therapeutic for people who are mentally ill. A
former visiting general practitioner to the BWCC, Dr
Schrader, made the following observations
about the use of the isolation cells at the Centre:
The treatment is the opposite of therapeutic. The use of
seclusion is inappropriate for those of risk of self-harm and suicide. Observation
alone does little to help the woman overcome her distress and suicidal or
self-harming feelings and is alienating in itself ... A key element in suicide
prevention is the presence of human interaction.
The committee heard similar evidence about the use of
seclusion facilities for prisoners assessed to be 'at risk' in other
jurisdictions. Mr Strutt,
a member of Justice Action, a prisoners' activism organisation, referring to
the use of isolation cells in NSW, stated that:
If you are a prison officer and you see a prisoner who seems to
be seriously depressed ... your No. 1 priority is to make sure that that person
does not kill themselves while you are on duty. So basically you put them in a
strip cell. For all the talk about care and attention they are getting in
prisons and hospitals, the way those institutions are structured means they are
not getting the appropriate care and attention.
Treatment of psychotic prisoners
Although anxiety and depressive conditions appear to be
common among prisoners, corrections and health authorities devote most
resources to the treatment (or control) of prisoners with relatively low
incidence disorders, in particular, psychoses.
Allnutt found that psychosis was more common among reception prisoners than
among sentenced inmates (12 percent vs. 5 percent). The reason for this is not clear,
but it is possible that less access to drugs in prisons may contribute to a
lower incidence of drug-induced psychosis and that people in prison are more
likely to receive treatment than if they remained in the community.
One psychotic illness in particular is of concern to
mental health and criminal justice authorities. Professor
Andrews informed the committee that the
association between violent crime and schizophrenia is well established in the United
States of America and Denmark,
and that a careful compilation of state statistics might well show a comparable
situation exists in Australia. Professor
Andrews referred to a paper with which he is
associated and which has been submitted for publication where it is reported
that rates for psychotic-like experiences were 11 times higher among people
being admitted to NSW prisons than in the general population. Forensicare also referred to
evidence that shows that those with severe mental illness, particularly
schizophrenic illnesses, are more likely to commit criminal offences and more
likely to end up in prison.
Forensicare referred to a Victorian study that found that those with
schizophrenia make up between 0.5 percent and 0.7 percent of the Australian
population but are responsible for 5 percent to 10 percent of homicide and
seriously violent offending.
Psychosis is associated with violence and treatment in a secure
facility for some is essential, whether we call this a hospital or a jail is
irrelevant as long as treatment is delivered.
'Least restrictive alternative' for
The Human rights and Equal Opportunity Commission
(HREOC) informed the committee that Principle 9 of the UN Mental Health
Principles 'emphasises the importance of "the least restrictive
alternative" in relation to treatment.
This principle raises additional issues in relation to the treatment of
forensic patients in gaol. Diversion programs are an attempt to treat forensic
patients in a less restrictive environment than a prison. Diversion may result
in treatment in the community. Both appear to offer a 'less restrictive
environment' than does a prison.
Secure facilities may not necessarily offer a 'less
restrictive alternative' than prison if the patient faces an indeterminate
period of confinement in the facility. Even where Mental Health Tribunals
recommend that people be released, unless the decision is made by, for example,
a court, rather than treated as an exercise of executive discretion, people may
be confined for long periods. One NSW case brought to the committee's attention
concerned a man who shot another, was found not guilty of grievous bodily harm
on the grounds of mental illness, whose release into the community was
recommended by the Mental Health Tribunal, but who has not been released by the
In most Australian jurisdictions the responsibility for
deciding on the release of forensic prisoners has been, or will be, removed
from the political arena. The Tasmanian Government, for example, is drafting
new legislation to provide that:
Decisions regarding the discharging of patients [from the new
secure mental health unit] will be based on health and risk management grounds,
with the final decision body being the Supreme Court of Tasmania. This will
ensure that management decisions are quarantined from the political process.
These legislative changes give effect to the following
recommendation of the Burdekin Report:
Decisions concerning the release of persons unfit to be tried or
not guilty on the grounds of insanity should be made by courts or independent
specialist tribunals. These bodies should exercise determinative powers. The
executive branch of government should not have the ultimate responsibility for
The transfer of responsibility for the release of
forensic patients to the courts or the mental health tribunals may well result
in the release of more people than at present. The (appropriate) release of
more people than formerly released makes the provision of proper step-down
programs and other treatment options in the community even more important and
Release policies and practices
The evidence shows that corrections authorities
generally have developed and established relatively enlightened policies for
the care of prisoners with mental illness. They also generally have enlightened
policies for the release of prisoners. However, it seems that the practice
often may be different from the theory, both as regards care and release.
A study of release policies and practice in Queensland
(Incorrections) was submitted by the
Centre for Social Justice, a division of UnitingCare Queensland.
The study, among many other things, listed the needs of newly released
prisoners - a list that included access to money for immediate needs,
accommodation, employment, health needs and social and emotional support. It appears from the study that the
health needs of former prisoners with mental illness, especially those who have
served their full sentences, often are not being met. The study reported that:
Ex-prisoners and service providers consistently reported that
prisoners are often released with 'nothing'. Drug-addicted, mentally disturbed
and physically ill prisoners are often released
without prescriptions for the
drugs they require, or referrals to doctors or other professionals ... They are
released with no money, no home, no job, and without having met, or been linked
with, a worker in the community who they can turn to for help.
Evidence submitted by other witnesses indicates that
this situation is not limited to a single jurisdiction, but may unfortunately
be widespread. Forensicare stated, for example, that:
At the point of release,
coherent plans for a managed return to the community with prearranged mental
health support almost never occur.
study sets down a number of principles for best-practice release of prisoners.
These principles have general application, and are applicable to the release of
prisoners with mental illness. The principles include 'throughcare', which
requires the early assessment and referral of prisoners to appropriate
interventions and programs, aftercare and pre-release programs.
The Incorrections study found that in a
number of re-entry programs that exist throughout the world, the key feature is
a solid partnership between prisons and community mental health providers. As discussed elsewhere in this
report, community health services in Australia
appear to be inadequate. As a result, the adoption of enlightened re-entry
programs would require not only the wholehearted cooperation of corrections
authorities, but significant allocations of additional resources for community
Care on release
The St Vincent de Paul Society, although agreeing with
other witnesses that persons with a mental illness should not be in prisons,
stated that in the existing circumstances where there is no other reasonable
method of housing some of those people, there needs to be a pre-discharge plan.
That plan would include providing adequate financial resources, budgeting and
living skills and linkage to exit housing with appropriate supports.
Forensicare suggested the post-prison care of mentally
ill prisoners might be approached as follows:
Inreach services, where
local community health teams, or where available, forensic mental health teams,
begin to manage prisoners prior to their release would be a major contribution.
One potential reform worth considering is that mental health services in all
prisons become part of the area mental health service in which the prison is
situated, with special Inreach teams, augmented by input from specialist
forensic mental health professionals. (As is now beginning to occur in the UK).
A similar approach was suggested by Psychiatric
Disability Services of Victoria (VICSERV) Inc., which made the following
That community-based rehabilitation and support
services (CBRS) be engaged to deliver psychosocial rehabilitation within
prisons and for post-prison transitions
That housing resources (with attached CBRS
resources) be allocated to assist prisoners with a mental illness to make
successful transitions back into community life
That partnerships and communication strategies
be developed between prison authorities, clinical, mental health services, CBRS
services and housing agencies
That intensive transition packages such as
Individual Support Packages or intensive home-based outreach funding be
established to decrease the possibility of re-incarceration due to relapse.
However, as reported earlier, the committee heard that
the step-down and other community facilities that would enable these approaches
are inadequate. Professor Andrews
Units that can't discharge can't admit. Australia
presently has sufficient acute short stay beds if the beds were occupied only
by acute care patients. However it has only a quarter of the rehabilitation
beds required and perhaps only 40 per cent of the community beds required.
In the absence of step down beds, public sector staff are being
asked to maintain patients in the community who are too sick to live in the
community and who should be in stable supervised accommodation.
There is a high rate of recidivism among former
prisoners with a mental illness.
Forensicare informed the committee, in relation to patients suffering with
Repeat offending in schizophrenia is critically dependent on
whether the individual had the ongoing structure provided by open employment,
but failing that, sheltered workshop or day centre support. Services have been
withdrawn from programs of active work rehabilitation in recent years, but this
is a critical element in patient functioning and in reducing offending.
Ignored, mismanaged, released unprepared, rapidly re-offending
and returning to prison. This is all too often the story of the mentally ill
offender, repeated and repeated.
Allnutt found that, based on a report of a British study, 'The mentally ill
often revolve through prisons, with periods of incarceration interspersed with
spells in the community and place high demand on services'.
Forensicare referred to a study, in preparation at the
time of the inquiry, examining recidivism in a mentally disordered population
with and without co-morbid substance abuse.
The committee welcomes that study and would encourage other professionals to
undertake studies of recidivism that, among other things, might cast light on
the causes for recidivism and that might enable authorities to assess the
effectiveness of diversion programs.
Although there is a need for more data to ensure that
approaches to treatment of potential re-offenders are based on sound evidence,
the relative absence of data should not prevent authorities from now offering
appropriate support. There is sufficient evidence now available to suggest how
this support might be provided. Forensicare made several recommendations for
action that it considered would reduce the rate of offending and re-offending
on those with schizophrenia. These recommendations canvas matters such as providing adequate
secure continuing beds and restructuring community mental health services. Forensicare commented that the
implementation of those recommendations would be costly but, 'given the
potential benefits in reduced crime, reduced prison numbers and improved care,
they should be viewed as a bargain'.
'Dual diagnosis' is a term used to describe the
co-existence (or co-morbidity) of mental illness and substance use disorders,
although individuals rarely experience only two disorders.
informed the committee that a recent study of rates of recidivism among people
released from the TEH confirms that those patients with a co-morbid mental
illness and substance use or dependence disorder were at a particular risk of
re-offending. The committee was told that the data clearly shows that substance
abuse and dependence and mental illness are independent risks for re-offending,
and that when these disorders occur together, there is an exponential risk of
re-offending. The South
Australian Department of Health cited a study that showed that the presence of
co-morbid mental health problems and substance abuse increases the rate of
offending by people with mental health disorders discharged from hospital by up
to five times.
Dual disorders are extremely complicated and both
diagnosis and treatment are clinically difficult. Despite the difficulties, some
Australian service providers are attempting to treat the condition. The
Queensland Government has developed a 'strategic plan for people with a dual
diagnosis' and for which nine change management positions have been established
in high prevalence areas across the state.
Project teams within Forensicare have suggested that
the organisation undertake a systematic and comprehensive approach to the
assessment and treatment of dual diagnosis.
Among other things, the Forensicare project teams suggested that consideration
be given to the possible use of involuntary treatment for substance abuse in
high-risk diagnosis patients, which would require that the concept of treatment
under the Mental Health Acts be redefined to include treatment of substance
The committee trusts that Forensicare will be able to
undertake this work and that the organisation becomes, as suggested in the
study, 'recognised locally and internationally as a centre of excellence in the
assessment and treatment of dual diagnosis'.
However, it also notes that expansion of involuntary treatment could go against
the spirit of mental health reform and the desires of consumers to be more
involved in their treatment.
Mental illness and the criminal justice system: the role of the
The Australian Government has only a limited and
indirect role in forensic mental health. In its submission to the inquiry, the
Government stated that it has no express power to legislate in relation to
criminal law, except to the extent that the criminal law may be connected to
other federal powers. It does,
however, have the power to create offences against federal laws and in that
regard the Australian Law Reform Commission (ALRC) is currently inquiring into
the sentencing of federal offenders. ALRC has published a paper for comment in
connection with its inquiry, which includes a chapter on mental illness and
intellectual disability. The
Commission observes in that paper that because each jurisdiction has a
different scheme, the treatment of federal offenders may therefore be unequal.
Because the states and territories are responsible for
criminal law in their own jurisdictions, it follows that they are also
responsible for the care and health of their prisoners, including their mental
The Australian Government's principal contribution to
the costs of treating people with mental illnesses is through Medicare and the
Pharmaceutical Benefits Scheme, but prisoners are not eligible to receive
benefits under either scheme.
Section 19 to the Health
Insurance Act 1973 provides that a Medicare benefit will not be paid in
respect of a professional service that has been rendered by, or on behalf of,
or under an arrangement with a state. A witness from the Department of Health
and Ageing stated that:
and the medical services that are provided to people within those facilities
would be regarded as being under an arrangement with a state.
therefore, the costs of treating mentally ill prisoners are borne entirely by
the states and territories. This point was made by the Victorian Government,
In his second reading speech to the Health Insurance Amendment Bill 1976,
which contained the provision that was inserted into the principal act, the
then Minister for Health stated that the Commonwealth was concerned about the
rising costs of Medibank and the potential for cost shifting from the states to
the Commonwealth. The relevant part of the speech reads as follows:
... benefits should not be paid to relieve governments, government
authorities, or employers of costs that, but for Medibank, should be borne by
The committee notes that the cost of providing health
care to prisoners is significant. In NSW alone, the Department of Correctional
Services spent $68 million on medical services to prisoners in 2004-2005.
The committee was informed that prisoners'
ineligibility for Medicare can produce 'the most extraordinary situations'. Professor
Mullen stated that:
You can have a prisoner who is physically or mentally ill in a
relatively isolated prison ... which may very well have a base hospital nearby,
but you cannot access the doctors and the skills in that hospital or the
practitioners who live nearby and might be prepared to provide care. This is
because the state will have funded a health service which may be hundreds of
kilometres away, and will transport the prisoners to that service rather than
use the facilities right next door.
In its indirect role in the treatment of forensic
prisoners the Commonwealth has liaised with the states and territories to
develop the National Statement of
Principles for Forensic Mental Health, which has been discussed elsewhere
in this Chapter, and has provided funding for the Drug Use Monitoring In
Australia program. This program collects information from detainees at police
stations or watch houses to provide an evidence-base for policy making in
regards to drugs and crime. A section on mental illness is included in the
questionnaire used for the program.
'Peter's' story: from submission 456
The environmental component of my depression is made up of how I was raised and the
seed of depression that I believe was already there. A potent mix.
I grew up with a step father who was physically, verbally and mentally abusive towards me and my family for the first fifteen years of my life. In response to this I was a complete wild child, always in trouble, aggressive and anti social. At a very early age I remember speaking with counsellors and shrinks. Never once was I asked if I was being abused or even assessed properly as to my mental well being. Just asked why I was so naughty. I think this had to do with my age (at this time I was under eight years old) and also that I lived in outback Western Australia. I'm not sure at whose insistence but I was twice sent to youth detention centres before I was ten years old, where I spent about two years in total. Even in these places I do not believe that I was assessed for my mental well being or probed on my family situation. And both times I was sent back to my abusive home and the cycle started all again.
At age thirteen I stole all the pills I could find and tried to end my life (thankfully I just made myself sick). Once, when I was fourteen I had just had severe belting by my step father and about an hour later I picked up a knife and went into his room where he was sleeping. I was going to kill him. I wanted to but I didn't. I walked out of the room. I didn't want to spend my life in jail because of him. About the age of fourteen I had my first drink and I immediately binged. I would drink until I passed out of threw up or both. I also started smoking pot around this time. I wanted to not feel anything at all so moderation didn't come into it.
At fifteen I left home and spent the next thirteen years battling the depression demon, amongst other things, I ended up in a youth hostel where drinking continued and I was introduced to 'downers', valium and the like. I also got involved in sex work, an occupation that would last for ten years. Also I progressed to harder drugs like ecstasy and speed. Until I was 28 I was a drug addict using marijuana, speed, ecstasy, crystal meth, valium (and assorted downers), alcohol and practically anything else I could find. I also dealt drugs and had run ins with the law for drug offences and assault. During this ten year period I saw many psychiatrists and counsellors and I was prescribed anti depressants, like Prozac and Xanax. I didn’t like how I felt on anti depressants, I felt like a zombie. More so than when I was on my other drugs of choice.
So all of the above mentioned crossed with a family history of depression was an unfortunate mix. In my late twenties I had finally had enough of my lifestyle and I stopped taking drugs, finished with the sex industry and got a steady job. I still had to contend with my depression though and I shopped around for a counsellor that was compatible with me that could help me. I realised during these sessions that depression would be with me for life and I made the decision to fight it head on. I chose not to take anti depressants and to fight depression with lifestyle change and understanding my enemy. These days my life is much better but I have to remind myself what I am dealing with and I battle with that each day. Most days are good, some days not so good and some days are just plain terrible. But understanding my enemy has been helpful. I now want to live my life, as opposed to being suicidal for many years.
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