NSWLRC Law Week seminar on People with cognitive and mental health impairments in the criminal justice system
NSW Parliament House Jubilee Room, 11 May 2009

Alison Merridew

Graduate Clerk, NSW Law Reform Commission

“D” is a 16 year-old girl. She was removed from her family at an early age due to sexual abuse, and suffered further abuse while in foster care. She has a history of behavioural problems including self-harm and outbursts of physical violence, sometimes involving knives and other sharp objects.`

“D” breaks into her mother’s house and stabs her in the throat with a knife. She is remanded in a juvenile detention centre. She is enrolled in a cooking class. “D” is excited about doing the class and asks staff about whether there will be knives there. During the morning recess she is very excited about the large knives they have been allowed to use.

After the break, the teacher asks her to stop stabbing her knife into the cutting board, fearing she will damage the knife. A few minutes later, “D” takes the knife and stabs it into the back of a detention centre employee, who dies.

“D” is charged with murder, and with the attack on her mother. She is not capable of participating in a trial, because of what is described as a severe personality disorder and some intellectual deficits. At a special hearing – the substitute trial process used in these situations – the judge makes a finding that she is not guilty of murder but, on the limited evidence available, that she committed the offence of manslaughter, based on the defence of diminished responsibility.¹

The judge made the following comments about the killing:

… Although the intention to cause at least serious harm was inescapable, the act was done on impulse, with no planning, without provocation and with no discernable motive.

As to the offender’s mental state, [a forensic psychiatrist] described her personality disorder as "extreme" and "severe", and her consequent behavioural disturbances as "extreme".

The judge also found that “D” –

…had a pathological fascination for knives and other sharp objects. There was a history of incidents involving violence and the threat of violence. She had limited capacity to control her behaviour in this respect. On the day of the homicide, [she] was in a highly aroused state, initiated by access to and handling of a knife or knives. Her tendency to violent behaviour, the availability of a knife, her highly aroused state and her inability to control her impulses combined to produce the tragic consequence.²

The judge concluded that the sentence for the two offences would have been one of imprisonment for a total of 6 years, taking into account –

…retribution for wilful injury and then for taking a human life; and, on the other hand, the very low level of moral culpability involved in either offence by reason of the offender’s mental state. I also take into account, in mitigation, the offender’s youth and the harsh conditions under which she is kept.³

When her case went back to the trial judge for final orders, “D” was being housed in the segregation unit of a men’s high security prison, because her behaviour had become unmanageable in the high secure women’s facility. She was seeing her treating psychiatrist every 1 or 2 months. I understand that she has since been moved back to a women’s prison facility. In NSW, there was no secure treatment facility that capable of accommodating her.

I have told “D”’s story in some detail for two reasons. It is a case that has struck a personal chord with me – “D” is one year younger than I am. She has a severely disturbed mental state attributable to terrible events in her early life.

“D”’s case⁵ also highlights a number of issues that form part of the New South Wales Law Reform Commission’s current reference on people with cognitive and mental health impairments in the criminal justice system.

I’m going to start out by giving you the overall picture of the system in NSW at the moment. Then, we’ll look at some of the individual areas.

I would like to acknowledge the other members of the team, legal officers Donna Hayward and Rebecca Kang, and Commissioners the Honourable James Wood AO QC, the Hon Greg James QC, the Hon Hal Sperling QC and Professor Michael Tilbury.

The Commission has been asked to undertake a general review of the criminal law and procedures applying to people with cognitive and mental health impairments.

The phrase “cognitive and mental health impairments” is intended as a “catch-all” expression which includes pretty much everything except for substance use disorders. So it includes the major mental illnesses, personality disorders, and other mental health problems such as anxiety disorders and post-traumatic stress disorders. The reference to cognitive impairments includes intellectual disability, autistic spectrum disorders, acquired brain injury, neurodegenerative diseases such as Alzheimer’s condition, etc.

We have been asked to have particular regard to sentencing, fitness to be tried, the defence of mental illness, and diversion. As well as examining those specific issues, we are looking at the system as a whole, to identify and ensure consistency in the underlying principles.

The existing framework reflects these underlying considerations.

Community protection has always been a feature of the criminal justice response to people with cognitive and mental health impairments. This reflects both real risks, and community fear and misunderstanding. Historically, it meant indefinite detention of people who were unfit or not guilty by reason of mental illness. It is now increasingly recognised that the community can also be protected by treating or managing the person’s impairment, although criminal justice responses don’t entirely reflect this yet.

Fairness to the defendant is especially important in cases where the defendant does not have the mental capacity to participate in a trial, because if a person is not in a condition to defend him- or herself, then there cannot be a fair trial.

Fairness also requires that punishment, when applicable, should be proportionate to the degree of criminal responsibility, both in sentencing, and also in cases where there is no punishment at all because the person has no responsibility – that is the defence of mental illness.

Punishment is meant for retribution and to deter the offender and others from doing the same thing. This doesn’t work if the person’s conduct was not really a “choice” but arose from an impairment. A person can’t be deterred from behaviour they didn’t really “choose” in the first place, and it wouldn’t be fair to punish them to set an example to others.

Treatment and support have found their way into the criminal justice response more recently, partly because of advances in our understanding of cognitive and mental health impairments, and the availability of medication and therapeutic techniques such as cognitive behavioural therapy.

A number of human rights instruments recognise the rights of people with cognitive and mental health impairments to appropriate treatment and support, both in the general community and in prisons. But, as the case of “D” shows, we have a long way to go to make sure that criminal justice processes and facilities reflect these ideals.

The historical origins of the framework are also important. If we understand why particular mechanisms were introduced, we can determine if they are achieving their intended purpose. Sometimes, the original reasons no longer apply. We can also identify additional principles that should infuse the framework – such as modern human rights norms – and find ways to balance the relevant considerations.

An example of these historical factors is the different powers that exist in different NSW courts.

In the past, all the serious cases – murder, treason, robbery – were tried by juries in the Supreme and District Courts. Special provision was made for the defence of mental illness and for people who weren’t capable of participating in a trial because the consequences of a conviction were dire – including the death penalty.

The Local Court, on the other hand, used to deal only with minor matters. Mechanisms for fitness and the mental illness weren’t considered necessary. So the powers of the Local Court are more limited, largely because of historical reasons.

There are five parts to our presentation today:

• Part 1 is about the defence of mental illness.
• In Part 2, we look at what happens if the person isn’t capable of participating in the trial. Both of those apply only to the District and Supreme Courts.
• In Part 3, we look at sentencing, which applies in the DC/SC, and in the Local Court.
• In Part 4, we look at the special diversion mechanisms, which are only in the Local Court.
• Finally, we’ll look at the framework as a whole and some of the “big picture” issues we’re trying to address, including issues relating to young people.

PART ONE – Defence of mental illness

What really happens if a person is found not guilty by reason of mental illness? I’ll ask Greg to answer that question.

For information about the forensic mental health system, including recent legislative changes, see:

the Mental Health Review Tribunal website: «http://www.mhrt.nsw.gov.au»

G James, J Feneley and S Hanson, “The Mental Health Legislation Amendment (Forensic Provisions) Act” Judicial Officers Bulletin vol 21 no 3 (2009), available from the NSW Judicial Commission or the State Library of NSW
«http://www.judcom.nsw.gov.au/publications/bulletins-and-journals»

The current law

The current law is based on the 1843 case of Daniel M’Naghten and reflects quite ancient notions of what “insanity” involved.

The defence is available if a person, because of a “disease of the mind”, did not know the nature and quality of the act, or did not know that the act was wrong. “Disease of the mind” is not the same as medical notions of “mental illness”. The legal concept includes conditions such as epilepsy, brain tumour and possibly intellectual disabilities.

Several Australian jurisdictions, including Victoria, have reformed the defence in the past 15 years and renamed it “mental impairment”. However, most jurisdictions have retained the M’Naghten framework, give or take a bit of tinkering about the capacity for self-control.

An interesting feature of the defence of mental illness is that it isn’t really about mental illness at all. The big question here is, “When is a person not criminally responsible for his or her actions?”

The M’Naghten rules do not provide a good way of answering that question. Even Daniel M’Naghten – who tried to kill the Prime Minister, who he delusionally believed was at the centre of a plot to persecute him – should not have been acquitted according to those rules.

They have been applied in ways that do not reflect the wording of the rules, where sympathetic courts and juries have not wished to convict a person they feel sorry for, or where persons accused of heinous crimes have been convicted despite undisputed medical evidence that their behaviour was governed by an underlying mental disorder.

In “D”’s case, the psychiatric evidence was not sufficient to support a defence of mental illness. Yet, her behaviour in killing the detention centre employee was clearly influenced to a large degree by her mental state. Indeed, the judge found that there was no other explanation for it.

In another NSW case, a prisoner who repeatedly told guards that he was having homicidal thoughts was placed in a shared cell. Within an hour of being locked in, the other inmate was dead, having been beaten to death by the homicidal prisoner. The judge in that case observed:

…the offender said that he did not intend to kill the deceased. I am unable to accept this evidence… It seems to me that the offender well knew the nature of the homicidal urges he was experiencing. It was for that very reason that he asked to be placed “one out” [in a single cell]. True it is that his mental illness impaired his ability to control those homicidal urges. But I think he recognised their nature and understood the wrongfulness [of the acts that] he felt compelled to carry out.⁶

In that case, the offender was convicted of manslaughter, based on the partial defence of diminished responsibility. We’re considering the overlap between that defence and the defence of mental illness, and with other defences that involve questions of mental state or intention.

Defences such as self-defence and mistake all involve subjective consideration of the defendant’s actual state of mind and, if the defence is established, the person goes free.

But what if the defendant’s state of mind was affected by a cognitive or mental health impairment? Should the defence of mental illness apply, bringing the person into the forensic mental health system, or should the person go free? The need to protect the community is relevant in some cases.

There is also an important question about the relationship between intoxication and the defence of mental illness, particularly in cases where psychoactive drugs are involved.

PART TWO – When the person lacks mental capacity to participate in trial

Lawyers talk about the person being “unfit to be tried”.

So, when is a person unfit to be tried? The Presser criteria about understanding what is going on, being able to communicate with counsel etc are well accepted in Australia.

However, broader standards apply in some jurisdictions, including whether a person is able to make rational decisions, or whether the person is able to “participate effectively” in the trial. We are also looking at the concept of “capacity” as it exists in the civil context to see whether that might add to the current formulation.

If a person is unfit there is a “special hearing”, which runs like a normal trial, to give the person a chance of being acquitted. If they’re not acquitted, the court makes an order which is basically the sentence that would have been imposed at a normal trial.

If it’s a community-based “sentence”, they don’t become a forensic patient and there is no tribunal oversight unless the person happens to be in the civil mental system. If the person breaches the conditions of the sentence, they can be brought back to court and “re-sentenced” in the same way.

If the sentence would have been prison, the court sets a limiting term which is the hypothetical total sentence that would have been imposed. The person is then detained as a forensic patient – Greg will talk about that in a moment.

This system was introduced in 1983. Before then, if a person was unfit he or she was locked up indefinitely, as with those who were not guilty by reason of mental illness. There was no trial, so the person might have been innocent but there was no way to be acquitted. Also, the offence might have been relatively minor, such as shoplifting, but the person could be locked up indefinitely, for far longer than if they had been convicted of the offence at a trial. So the special hearing and the quasi-sentencing system were introduced to give the person a chance to be acquitted, and to ensure that they weren’t locked up for longer than if they had been convicted.

The limiting term in practice – see:

Hon Greg James QC, Review of the Forensic Provisions of the Mental Health Act 1990 and the Mental Health (Criminal Procedure) Act 1990, Consultation Paper (2006), available at «http://www.health.nsw.gov.au/pubs/2006/mh_forensic.html»

Hon Greg James QC, Review of the NSW Forensic Mental Health Legislation, Report (2007), available at «http://www.health.nsw.gov.au/pubs/2007/forensic_review.html»

In addition to these problems, the sentencing-based limiting term also means the court has to focus on the past conduct and can only consider future risk to a limited extent.

In “D”’s case, the evidence was that she is likely to remain very dangerous for a long period of time – possibly 30 years. An indefinite order may be more appropriate, because the person can receive compulsory care and/or detention for as long as is necessary to avoid the risk he or she poses. But if she does not receive the treatment and care that she needs, that would be tantamount to locking her up and throwing away the key.

We’re looking at how the law can balance public safety with fair outcomes for defendants.

PART THREE – when the person is found guilty of an offence

Sentencing

Sentencing raises two main questions – what are the principles that apply when a court is sentencing a person with a cognitive or mental health impairment? And, having applied those principles, are the sentencing options that are available to the court adequate in terms of providing for treatment or other support services where necessary while also meeting the needs of the community in terms of punishment and safety?

There are 7 different principles in the Australian caselaw but the NSW courts usually only refer to four of them. Courts in NSW emphasise “dangerousness” – that is why the limiting term was increased in “D”’s case – whereas in Victoria it does not seem to be referred to much at all. We’re looking at legislative reform to establish a consistent set of principles.

In NSW, there are no special sentencing options for people with cognitive and mental health impairments. In contrast, most Australian and overseas jurisdictions have treatment-oriented options, such as hospital orders, and conditional release orders with a requirement to undergo treatment or participate in rehabilitation programs.

The legislation that sets up the existing sentencing options in NSW – prison, weekend detention, home detention, community service and good behaviour bonds – does not include many provisions to adapt these sentencing options to the needs of people with cognitive and mental health impairments. There are few mechanisms to link the court and the probation and parole service with other service providers.

In practice, this contributes to two problems. If the court or the PPS cannot arrange the necessary services, then the offender might be ineligible for sentences such as community service or weekend detention, and end up going to gaol instead.

In other cases, the court really doesn’t want to send the person to gaol, so it might impose a sentence such as a good behaviour bond. But if the person doesn’t have adequate support, there is a good chance they will breach the conditions of the order and/or commit further offences. Then they are punished for failing to comply with the order and so the punishment escalates.

We’re looking at ways to improve linkages between the court and the relevant services. Also, whether we need additional treatment-focussed sentencing options and, if so, what options?

If the person does end up in gaol, there are some disability services and detailed legislation to provide treatment to inmates with mental illnesses, which Greg will now explain.

MENTAL HEALTH TREATMENT IN CORRECTIONAL CENTRES

See references above

PART FOUR – DIVERSION

Revisiting the NSW framework, I’m going to talk now about the Local Court. Here, the sentencing options just discussed also apply, but there are no powers or procedures for people who are unfit to be tried or NGMI. However, the Local Court has something the District and Supreme Courts don’t have – two diversion mechanisms

The key provisions are sections 32 and 33 of the Mental Health (Forensic Provisions) Act.

Section 33 applies only to a person who is “mentally ill” at the time of hearing so as to be a danger to him- or herself or others and to require treatment. The magistrate can refer the person to a hospital for assessment and or treatment, or may make a community treatment order.

Section 32 applies to a person who has a mental illness, developmental disability or “mental condition”, either at the time of the offence or the time of the hearing.

The magistrate can dismiss the charges and divert the person into treatment, into the care of a responsible person or may release the person unconditionally.

The court has a power, for 6 months after a section 32 order is made, to call the person back to court if any conditions are breached. So, it is said that the order is “enforceable” for 6 months. This effectively limits the section to apply only to relatively less serious matters.

There are some difficulties with finding services into which to divert people. The court has no power to compel agencies to provide services.

Also, if more than one service is required, for example housing and mental health, there is no mechanism to coordinate service provision.

Those provisions don’t apply in the District or Supreme Court. There are essentially no diversion mechanisms in those courts.

At the same time, the Local Court sometimes has trouble in more serious cases, if the evidence suggests that the person was really not guilty by reason of mental illness, or if the person is unfit to be tried, these diversion powers are the only way the Local Court can lawfully deal with the matter. The court can’t convict and punish someone who hasn’t had a fair trial (because they’re unfit) or if they’re not criminally responsible (because they’re NGMI). But if six months’ diversion is not going to provide enough treatment and support to ensure that the person doesn’t commit another serious offence, the court is reluctant to divert them. Sometimes in those cases, the court convicts the person anyway.

This problem is becoming more common, because the Local Court has the power to try more serious cases than it used to.

The Local Court also deals with the vast majority of criminal cases in NSW.

PART 5 - OVERALL PICTURE

So one thing we’re looking at is whether all courts should have the same types of powers. We’re also aiming for consistency in the relevant principles, so that if a person can’t be convicted but needs to be treated or confined to protect the community, similar rules and systems apply.

Another underlying question is whether different legislative responses are necessary to take into account differences between relatively permanent cognitive impairments as opposed to more episodic mental illnesses.

Finally, a really big question is how we should respond to young persons with cognitive and mental health impairments who are alleged to have committed offences?

This is a really difficult question and it seems that no jurisdiction has really come up with an answer yet, so we’re in fairly uncharted territory.

The general approach has been to simply apply the adult criminal justice responses – sentencing, diversion, fitness and the defence of mental illness – to young people. But there are some problems with this.

Unlike adult offenders, human rights law tells us that anything to do with young people should have a predominant focus on the best interests of the young person.

From a clinical perspective, the current criminal justice responses don’t reflect what we now know about brain development and mental disorder.

Is a person really an “adult” at 18 years of age?

How can we ensure that legal constructs of criminal responsibility – such as the defence of mental illness – reflect common childhood mental disorders such as ADHD, conduct disorder and generally poor impulse control?

There are also difficulties in making a firm diagnosis at a young age. For example, in “D”’s case, there were some indications of a possible emerging psychotic illness. It’s hard for a court to know what sentence or limiting term to impose when the person’s prognosis won’t be available until a few years down the track.

The courts also have trouble dealing with co-occuring substance abuse, which is usually regarded as voluntary criminal conduct. There is limited recognition of its possible relationship to emerging and/or undiagnosed mental health problems, early childhood trauma, or as a reaction to peer group pressure on a person with cognitive deficits who The severe shortage of community services for young people with mental health problems means that things often reach crisis point before intervention occurs – as the case of “D” tragically illustrates.

We at the New South Wales Law Reform Commission would be delighted to receive your input on any or all of these topics when our consultation paper is published in the next few months. So, please, put your thinking caps on, and send us a submission.

For further information, or to be added to our mailing list, please contact us.

FOOTNOTES

1. R v Adams [2001] NSWSC 773.

2. R v Adams [2001] NSWSC 1042, [10]-[12].

3. R v Adams [2001] NSWSC 1042, [24].

4. R v Adams [2002] NSWCCA 448.

5. R v Adams [2001] NSWSC 773; [2002] NSWCCA 448; [2003] NSWSC 142 (reported at (2003) 58 NSWLR 1); Adams v State of NSW [2008] NSWSC 1257.

6. R v Heatley [2006] NSWSC 1199, [75].