Mental Health Law in New South Wales - Research Paper Example

Name) (Instructors’ name) (Course) (Date) ‘Mental Health Law in NSW/Australia’. The jurisprudence on sentencing offenders and the case law in various jurisdictions concerning the sentencing of offenders with mental conditions or illness or disability in intellectual capacity has developed significantly especially the position that has now being adopted in New South Wales.1 A particular area of interest is whether there is universal acceptance with regards to a casual connection between the mental disorder of an offender and the particular offence committed prior to the court issuing a lenient sentence.2 Another consideration is whether it is necessary and appropriate to use a similar approach to issue sentences to offenders with mental incapability.3 Offenders with mental condition or mental incapability or illness or at times referred to as persons with disability as far as their intellectual ability is concerned have formed the basis for numerous discussions,4 especially when it comes to their treatment by the criminal justice system in New South Wales hereinafter NSW and Australia at large.5 The publications concerning the issue include numerous newspaper articles, papers and reports which have focussed on issues ranging from the fitness of an accused person to stand trial, the defence of illness of the mind,6 to the partial defence of impairment that is substantial due to an abnormality in the persons mind. 7 There has been substantial debate in various jurisdiction that concern the access and availability of other methods of sentencing people who are classified as persons with a mental condition for instance the use of confinement in hospitals,8 or sentences that are indeterminate in situations where a wrongdoer or an accused person is thought to be unfit mentally and poses a danger to the members of the community.9 The issues stated are paramount however the focus in this paper is the exploration the principles of sentencing that are applicable when the mental condition, illness or disability in intellectual capacity of an offender arises for consideration during proceedings for sentencing.10 It is important to note that the same guidelines that apply to sentencing of offenders who are disordered mentally will not always be proper for offenders who suffer from disability of their intellect. The NSW Law Reform Commission conducted investigations as well as the unique challenges that intellectually disabled individuals encounter from the time of arrest to trail proceeding as well as matters concerning their fitness and the mental illness defence.11 In all the jurisdictions in Australia, it is generally accepted that for the purposes of proceeding for sentencing of an offender, it is important to give little weight to the principle of general crime deterrence in situations where a convicted offender is suffering from a mental condition or illness.12 This acceptance is on the basis that such an accused person is not a suitable or appropriate vehicle to be utilized as a deterrence mechanism or as an example to other members of the community.13 In addition to the stated principle; there is an emerging second principle when considering sentencing of accused persons with a mental condition. A second line of authority that is emerging suggest that to justify a lessening or mitigation in the imposed penalty, the mental condition, incapability or disability ought to have some role in causing the commission of the crime of offence so as to lessen and reduce the responsibility and culpability of the offender.14 Conversely, in situations where the offence is extremely severe and there is no particular connection between the mental condition and the commission of the crime, the goal of crime deterrence takes supremacy and primacy and thus there is no need to find circumstances that are mitigating.15 The jurisdiction in NSW has taken a different approach as the courts are not so accept to this principle, particularly in instances that involve offenders who have a mental illness or disability in their intellectual capacity. In the 1980s, there was a shift in focus on the treatment of individuals with mental conditions within criminal justice system. This renewed focus facilitated a range of reforms in legislation to make sure that crime perpetrators with mental illness received treatment that was adequate and that those perpetrators who were found not to be fit to be tried were not subjected to indefinite detention.16 The provisions highlighted formed the precursor to the 1990 Act referred to as the Mental Health (Criminal Procedure) Act of NSW. The Act prescribed the current regulations and procedures that dealing with matters concerning mental fitness as well as the defence of diminished mental responsibility or mental illness. A Mental condition is defined in the Mental Health (Criminal Procedure) Act under section 3 as a condition or a state of disability of the mind and does not include mental illness or disability in development of the mind. This Act is supposed to read together with the NSW Mental Health Act of 1990 which has defined illness of the mind,17 a person who is mentally ill,18 and a person who is mentally disordered.19 The definitions provided by the Act however, are not applicable in similar fashion during the proceedings for sentencing. The definitions are as a matter of fact directed at considerations that relate primarily to the disposal of an issue during inquiries for fitness, summary proceedings and the defence of impairment in mental capacity or mental illness. As far as sentencing is concerned, the Crimes (Sentencing Procedure) Act of 1999 in Section 21 A (2) (i) states that during sentencing, the mental condition of an offender must be considered. The section merely states that fact, it does not provide the definition of the words used. The implication for lack of clarity has broadened the meaning as enshrined in the legislation that concerns mental health of an accused person. The Mental Health (Forensic Provisions) Act of 1990 (NSW). The Mental Health (Forensic Provisions) Act of 1990 of NSW hereinafter referred to as the ‘Act’ highlights important considerations when the mental health of an accused person is the focus in court proceedings. Section 32 of the Act provides crucial provisions when the summary jurisdiction of a trail court is concerned. The provision differs significantly from the regime or system that is place for offences that are indictable. Conversely, albeit essentially, Section 32 permits accused persons who were at the time of the commission of the crime or persons who are, suffering from an illness of the mind or a mental condition for which there is availability of treatment in health facility dealing with mental health, to be shifted and diverted from being subjected to the law; and as an alternative to receive the necessary treatment. The Act specifically section 32 has been considered judicially in a number of cases. The notable cases include the case of the Director of Public Prosecutions v Sami El Mawas (2006) NSWCA 154 and the case of Anthony Nicholas Confos v Director of Public Prosecutions (NSW) (2004) NSWSC 1159. There are two limbs of the test to be applied in such situations. It is accepted generally that it is an instance of a medical or psychological outlook or opinion as to the issue whether the initial limb of the test is fulfilled whereas the second limb is a discretionary matter. The necessary and relevant considerations judicially as to the discretion of the magistrate are highlighted in view of the word of Justice Howie in the two cases. His Honour stated that it is quite evident that Section 32 of the Act necessitates the Magistrate to make a judgement based on his discretion as to suitability of the court proceedings under the section as opposed to act under the criminal law. The section makes a requirement in which the magistrate is expected to arrive at a finding of the facts at hand which is positive prior to the proceedings in order to deal with the accused person under the provisions of Part 3 of this Act. The Magistrate is permitted to proceed under section 32 subsection 2 to dismiss the charges or to discharge the accused person where in full view of section 32 subsection 1(b), the Magistrate has made a determination that, it would suitable to deal with the accused person in accordance with this part’s provision than alternatively or otherwise in accordance with the general law.20 In order to make a determination as to whether it is suitable to subject the applicant to Part 3 of the Act, the Magistrate has to undertake an exercise that involves balancing of interests. The Magistrate has to weigh on one side, the aim of punishing accused persons and on the other side, the interest of the public in diverting offenders who are disordered mentally away from the criminal justice regime or system.21 The judgment is discretionary upon which minds that are reasonable may arrive at different conclusions or determinations in any particular case that come their way. Importantly, it is a discretion that any judge or magistrates cannot exercise appropriately without due consideration and regard being taken as to the gravity and seriousness of the offending behaviour for which an accused person is brought before a court. It is quite evident that the more grave the offence, the more likely importance will be placed on the side of the public interest in imposing punishment against an accused person for the protection of the public at large.22 This consideration will present a situation whereby it will be less likely and appropriate to deal with an accused person in accordance with the Act’s provisions.23 It is important to emphasise that there are two interests of the public that are being balanced and to some extent the two interests are pulling in opposing directions. The situation is not a matter of weighing the interest of the public in penalty as against interests that are private to the accused person in rehabilitation.24 Due to the fact that the jurisdiction of the magistrate under the Act entails a judgement that is discretionary, the necessary weight that is to be issued to the different factors that focus and touch upon that decision and judgement will be very much an issue for the Magistrate concerned in the proceedings.25 It would be a very complex and difficult if not unfeasible and impossible for an accused to convince such a Court to intercede in the implementation of that discretion on the simple ground that the particular Magistrate emerged to relay more on one factor than the other factor.26 Just like any appeal against a judgment that is discretionary, the grounds upon which such a Court can come in as far as the exercise of that power is concerned under Section 32 of the Act is quite limited. The issue for such a Court is whether there was failure on the part of a Magistrate to either constructively or in actuality to exercise the discretion that is conferred on the particular Court by that section.27 In the Confos, case, McColl JA.28, proclaimed that in exercising the jurisdiction in Part 3, the Magistrate is granted certain powers. The nature of the powers is administrative and inquisitorial in order to inform the Magistrate what is fit in the situation.29 The power that clearly would have to be implemented and exercised in full view of procedures and requirements that are fair is a demonstration of the breadth and depth of the inquiry that a Magistrate is expected and entitled to partake or undertake in making a determination.30 The determination in question is whether to send an accused person along the route considered as diversionary or to leave the person to be subjected to the general law.31 When one critically considered the factors under Section 32 of the Act, it emerges that there are at the very least three decisions that the Magistrate is required to make.32 The very first decision is to make a determination in accordance with Section 32(1) (a) of the Act. It requires considering whether an accused person has satisfied the threshold to be subjected to that section. This question involves a fact finding analysis and it is appropriately described as a question concerning jurisdiction. Reference can be made to the case of Singer v Berghouse (No 2) (1994) HCA 40 at page 208 to 209.33 Secondly, the Magistrate must make a determination as to whether it would be more suitable and appropriate to deal with the accused person in accordance with the provisions enshrined in this part than otherwise in accordance with the criminal law in place. In making the determination, the Magistrate is to have regard to the facts that have been alleged on the ongoing proceedings or any other such evidence as the Magistrate presiding in the case considers relevant to the case. This consideration also includes presumably any other information that the Magistrate has come across or has garnered under Section 36 of the Act.34 The decision outlined above vividly called for the exercise of value judgment or subjectivity in which no one particular consideration as well as no combination or various consideration is necessarily determinative of the outcome.35 This was stated at page 19 in the case of Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194. In my considered opinion just as Honourable Justice Howie found in the Confos case, the issue involves a decision that is discretionary in which the Magistrate is permitted latitude as to the verdict which might be reached, a latitude constricted only by the object or entity and subject matter of the Act in question. This was similarly in the Coal and Allied operations case at page 19. In my further analysis, I cannot regard Justice Howie as having restricted himself or circumscribed the exercise of judgment that is discretionary at the second stage of the inquiry under Section 32. This opinion is stated in respect to the primary judge in the case. In the Confos case, the Magistrate had disallowed an application to deal with the accused person in pursuance to Section 32 of the Act due to the fact that she reached a conclusion that notwithstanding the mental condition of the accused person the crimes and offences with which he was charged with, were very grave and serious.36 In the Confos case, Justice Howie came to the realization that the second stage of inquiry under Section 32 of the Act required a situation whereby the balance of the purpose for punishing offenders as well as the interest of the public in diverting an offender who is disordered mentally from the criminal justice system.37 The judge made a reference to the fact that judgment that is discretionary could be properly exercise without due consideration and regard to the gravity and seriousness of the behaviour or conduct that is offending. After due consideration, in my considered view, the stand point of justice Howie is proper and appropriate reflection of Section 32(1)(b) requirement in which the Magistrate has regards to the alleged facts in the court proceedings.38 Section 33 is quite different to Section 32 due to the fact that under section 33, the Magistrate ought to have sufficient evidence that an accused person is ill mentally as enshrined in the definition under the Mental Health Act of 2007 of NSW. An accused person who is charged with an offence can be subjected to the jurisdiction of the Local Court and later the Magistrate makes a determination to deal with the accused person under Section 33 of the Act. The Magistrate ordinarily, would issue an order for the accused person to be taken to a psychiatric unit that is nearby or a local hospital for the purposes of assessment under the 2007 Mental Health Act of NSW.39 This prescribed process is not on voluntary basis as an accused person can be taken to for assessment despite their objection. Another option that a Magistrate may issue is a Community Treatment Order. Another option is for the Magistrate to discharge the accused person into the supervision and care of a person and it has conditions attached. This option is however rarely employed.40 Inadequate prison quarters as factor to be considered. The notion that prisons are neither equipped properly nor designed specifically to treat serious and grave illness of the mind,41 is another factor that the courts ought to take into consideration when making a determination whether an accused person should be dealt with in accordance with the provisions of the law of should be dealt with in accordance with Section 32 and 33 of the Mental Health (Forensic Provisions) Act of 1990 of NSW. It is undisputed that the prisons, jails and juvenile system in Australia have become the primary health care facilities for accused persons with a mental condition or illness.42 This designated function is one which the institutions are neither specially designed nor properly equipped to handle.43 Accused persons with mental conditions and illness constitute one of the most susceptible, vulnerable as well as treatable group of persons in the Australian society. Despite this reality, they are the people who are being subjected to institutions that are punitive on several levels.44 This is not an ideal situation on many levels fiscally, morally, clinically and based on Human rights and thus, it is important for the system to reform as far as the pathetic circumstances exist.45 Over the past twenty years, there has been a shift in the enforcement of the law in Australia which has contributed to an increase in the number of individuals with illness of the mind being confined in prisons and jails across Australia.46 The governments, both at the Federal and state level have adopted policies that are punitive which have contributed partly in the widespread incarceration and arrest on offenders who are non-violent.47 The persons are mainly suffering from a disorder of substance abuse which coexists with any other mental condition which they might be suffering from as far as their health is concerned.48 The systematic lack of funding of mental health of the community as well as the failure to make provision for coordinating and accounting for proper care, alongside prosecution of offenders who are non-violent has led to a trans-institutionalization of individuals suffering from illness of the mind out of the specialized mental hospitals and into the Australian prisons and jails.49 Individuals suffering from mental illnesses who if subjected to services that are appropriate could be taken care of by the families and a conducive community, as opposed to decompensate and ending up behaving in manners that engages and exposes them to the criminal justice system.50 From a clinical viewpoint, this realization is horrific and it also presents a huge economic drain and fiscal strain on the total resources of the community.51 It is agreeable that there is a consensus in both the criminal justice system of Australia and mental health that, if individuals who suffer from illnesses of the mind received the proper treatment that they require, a huge majority of them would not find themselves confined to prisons and jails.52 In Australia, deinstitutionalization has seen the number of psychiatric facilities both private and public bed capacity decline from approximately 30 000 in the late 1950s and early 1960s to approximately 80 000 presently.53 It is worth to mention that during that period, the population of Australia has since doubled.54 Undoubtedly, it is a realization that several people in Australia suffering from mental conditions and illnesses are not being managed properly in the community.55 Some researches focussing on mental health and the popular press have strongly argued that there recently, there has been a related transmigration of individuals from psychiatric facilities to centres that remand people as well as prisons.56 The remand centres in Australia, often have more gravely mentally ill persons than inpatient units dealing with mental persons in general hospitals. However, it is not certain whether the apparent increase in prevalence of persons suffering from mental condition or illness is a reflection of a genuine increase or an improvement in rates of detection.57 The statistical modelling of deinstitutionalization effects on the number of offenders in prison who suffer from mental health issues is fraught or filled with challenges methodologically as well as the unavailability of longitudinal data.58 The debate tends to overshadow other central areas of concern about conditions of the mind among prisoners. As it was pointed out years ago, regardless of the cause, the services for individuals with mental issues in the prisons in Australia are not adequate and as a result are in dire need for serious reforms.59 In conclusion, the Mental Health (Forensic Provisions) Act which until recently in Australia was referred to as the Mental Health (Criminal Procedure) Act prescribes the manner and ways of disposing cases of a criminal nature which involve accused persons who are suffering from intellectual disability or mental any mental illness. Section 32 in particular applies in situation where it appears to the presiding magistrate that the accused person was at the material time of the alleged illegal action or offence, disabled developmentally,60 suffering from an illness of the mind,61 suffering from a condition of the mind for which there is available treatment in a facility that handles mental illness.62 The person should not be a ‘mentally ill person’ within the meaning found in the Mental Health Act. In the case, the presiding Magistrate who is contented that the accused person of the defendant falls within any of the aforementioned categories, and is thus more appropriate to deal with the matter in question under this particular section than according to the law, can proceed to make either procedural orders or orders that are final.63 Section 33 of the Act is very similar to Section 33; however, it applies to an accused person who at the time of his appearance in court is a ‘mentally ill person’ within the meaning of the Mental Health Act.64 Unlike the situation in section 32, presiding magistrates often use section 33 as an interim strategy or measure in order to enable an accused person or defendant get an assessment psychiatrically and if need be get treatment in the very early stages of the case at hand. In many instances, a Magistrate will require an accused person or a defendant to be brought back to court when they are well and fit enough so that the court can deal with the changes. This may entail dismissing the charges against the accused person under section 32 or dealing with such persons according to the criminal procedures that appear to other accused persons. The general approach is that Courts should consider several factors when dealing with accused persons with mental conditions and illness.65 The balancing of two interests is paramount as well as the fact that prisons are not equipped properly to deal with such accused persons.66 The focus of dealing with such accused persons is to rehabilitate them in a manner that is appropriate to the offenders and the community at large.67 The considerations to be taken into account range from legal factors, to clinical, moral and social factors among other factors that might be necessary. BIBILIOGRAPHY. Articles and Books. 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J.B. and Byrne, G. ‘Substance-use disorders and psychological distress among police arrestees’ (2003) 179 Medical Journal of Australia 408-411 Herrman H, McGorry P, Mills J, Singh B, ‘Hidden severe psychiatric morbidity in sentenced prisoners: an Australian study’ (1991) 148 American Journal of Psychiatry 236-239 Howard, D and Westmore B, Crime and Mental Health Law in NSW, (Lexis/Nexis Butterworths, Australia, 2010) Jablensky, A, McGrath J, Herrman H, et al. ‘Psychotic disorders in urban areas: an overview of the Study on Low Prevalence Disorders’ (2000) 34 Australia and New Zealand Journal of Psychiatry 221-236 James, D.V, ‘Court diversion in perspective’, (2006) 40 Australian and New Zealand Journal of Psychiatry 529-538 Lamb H.R and Weinberger L.E, ‘The shift of psychiatric inpatient care from hospitals to jails and prisons’ (2005) 33 Journal of American Academy of Psychiatry and Law 529-534 Liska Allen E., ‘Modeling the relationships between macro forms of social control’ (1997) 23 Annual Review on Sociology 39-61 Nielssen, Olav. and Misrachi, S, ‘Prevalence of psychoses on reception to male prisons in New South Wales’ (2005) 39 Australia and New Zealand Journal of Psychiatry 453-459 Richardson, E, ‘Mental health courts and diversion programs for mentally ill offenders: the Australian context’ Paper presented at the 8th Annual IAFMHS Conference, Vienna, Austria, July 2008 Sainsbury Centre for Mental Health, Diversion: a better way for criminal justice and mental health, (London: Sainsbury Centre for Mental Health, 2009) Senate Select Committee on Mental Health, ‘A national approach to mental health – from crisis to community: First report’ (Canberra: Commonwealth of Australia, 2006) Skrzypiec, G, Wundersitz, J and McRostie, H, Magistrates court diversion program: an analysis of post-program offending, South Australia: Office of Crime Statistics and Research, (South Australia, 2004) Smith, Nadine E. and Jones, Craig, ‘Monitoring trends in re-offending among adult and juvenile offenders given non-custodial sanctions’ Crime and Justice Bulletin, no. 110, Sydney, NSW Bureau of Crime Statistics and Research, 2008 Spiers, M. “Diversion of the cognitively impaired or mentally ill defendant: summary disposal of criminal offences under s 32 Mental Health (Criminal Procedure) Act 1990”. Sydney, New South Wales: Criminal Law Review Division, 2004 Steadman, H.J, Davidson, S and Brown, C, ‘Mental health courts: Their promise and unanswered questions’ (2001) 52(4) Psychiatric Service 457-458 Stewart, L.M, Henderson, C.J, Hobbs MS, et al. ‘Risk of death in prisoners after release from jail’(2004) 28 Australia and New Zealand Journal of Public Health 32-36 Teplin, L.A, Abram, K.M, McClelland, G.M, Dulcan, M.K and Mericle, A.A. ‘Psychiatric disorders in youth in juvenile detention’ (2002) 59 Archives of General Psychiatry 1133-1143 The Audit Office of NSW, ‘Auditor-General’s report performance audit: agencies working together to improve services’ (Sydney: The Audit Office of New South Wales, 2006) Tye, C.S. and Mullen, P.E. ‘Mental disorders in female prisoners’ (2006) 40 Australia and New Zealand Journal of Psychiatry 266-271 Wallace Cameron, Mullen P, Burgess P, et al. ‘Serious criminal offending and mental disorder. Case linkage study’ (1998) 172 British Journal of Psychiatry 477-484 Weatherburn, Don and Trimboli, L. ‘Community supervision and rehabilitation: two studies of offenders on supervised bonds’ Crime and Justice Bulletin, no. 112, Sydney: NSW Bureau of Crime Statistics and Research, 2008 White P, Chant D and Whiteford, H.A ‘Comparison of Australian men with psychotic disorders remanded for criminal offences and a community group of psychotic men who have not offended’ (2006) 40 Australia and New Zealand Journal of Psychiatry 260-265 Whiteford, H.A and Buckingham, W.J. ‘Ten years of mental health reform in Australia: are we getting it right?’ (2005) 182 Medical Journal of Australia 396-400 Williams, C. R. ‘Psychopathy, mental illness and preventive detention: Issues arising from the David case’ (1990) 16(2) Monash University Law Review 161 Cases. Director of Public Prosecutions v Sami El Mawas (2006) NSWCA 154 Anthony Nicholas Confos v Director of Public Prosecutions (NSW) (2004) NSWSC 1159. Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194. Singer v Berghouse (No 2) (1994) HCA 40 Legislation. Crimes (Mental Disorder) Amendment Act 1983 Crimes Act 1900. Crimes Amendment (Diminished Responsibility) Act 1997 NSW Mental Health (Criminal Procedure) Act 1990 NSW Mental Health (Forensic Provisions) Act 1990 NSW Mental Health Act 2007 NSW Sentencing Act 1991 Read More