Chapter 6: The Criminal Justice System
Memorandum of Understanding
Rights of Forensic Patients
What is a Forensic Patient?
Representation before the Mental Health Review Tribunal
Fitness to be tried
Unfit to be tried by the Court
Bail
Special hearings
Not guilty
Not guilty by Reason of Mental Illness
Guilty at a special hearing
Fit to be tried during a limiting sentence
Release from a limiting term
Review by the MHRT
Criminal conviction
Developing a mental illness in prison
Unfortunately, many people within the criminal justice system have a diagnosed mental illness; these individuals are referreed to as 'forensic patients'. While the criminal justice system is slowly changing, recent figures indicate that up to 60% of people within the criminal justice system have a mental illness [1]. This over-representation is for a variety of reasons. Firstly, it is important to recognise the extent to which mental illness is present in the population as a whole - 1 in 5 individuals being affected by mental illness at some stage in their life.
Secondly, whilst there is no inherent link between mental illness and crime, there is a strong causal link between mental illness and incarceration. Furthermore, there is extensive evidence that people with severe mental illness are more likely to be convicted of misdemeanours than their mentally healthy counterparts, and tend to be incarcerated for longer periods[2] . As to why this is the case, it must be acknowledged that, in NSW, people with mental illness frequently encounter the criminal justice system as a result of an inability to access mental health services, either through absence of, or barriers to services, rather than because of any inherent criminality. The combination of inadequate community mental health services, heightened legal imperatives and shrinking facilities for people with mental illness have resulted in an increased reliance on police for crisis management and referral, regardless of the mental state of the individual. In addition, socioeconomic factors play a part: people who live in the most socio-economically disadvantaged circumstances are between one and a half and three and a half times (depending on age) more likely to have mental or behavioural problems as compared with people who live in less disadvantaged circumstances [3].
This chapter sets out the rights of forensic patients in relation to the Mental Health Act 1990 and the Mental Health (Criminal Procedure) Act 1990. It also discusses the implications of the memorandum of understanding between the NSW Police and the NSW Department of Health. More information on forensic issues can be found in Chapter 2.
Memorandum of Understanding
A Memorandum of Understanding between NSW Police and NSW Health was developed and released in 1998 to provide a framework for the effective management of people with a mental illness when the services of NSW Police and NSW Health overlap. It grew out of the need for a formalised system for cooperation between these important areas of service delivery, particularly when dealing with mental health crisis intervention.
The document is reviewed and revised from time to time by an interdepartmental working group overseeing its implementation, taking into account models of local practice that have been working well and issues which have arisen locally in respect of implementation. Specific flow charts assist officers in all services to streamline responses to situations where all agencies are involved.
A primary objective of this Memorandum of Understanding is to improve the response to and outcomes in the management of mental health incidents that involve responses from services.
The framework provided in this document is intentionally broad. Specific protocols are developed at a local level using local service components and addressing local needs. This ensures appropriate standards of care for people with mental health problems and mental health disorders and agreement on procedures for the management of crisis and high-risk situations.
Rights of Forensic Patients
What is a Forensic Patient?
A forensic patient is a person:
- Who is detained in a hospital, prison or other place or released from custody after having been found by a court to be unfit to be tried for a criminal offence;
- Who is detained in hospital pending committal to trial or trial for an offence;
- Who is detained in a hospital after being transferred there from prison; and
- Who has been found by a court to be not guilty by reason of mental illness.
Representation before the Mental Health Review Tribunal
Forensic patients must, unless the forensic patient decides that he or she does not want to be represented, be represented by a barrister or solicitor. The Mental Health Advocacy Service, a branch of Legal Aid, provides a free service for forensic patients when they come before the Mental Health Review Tribunal (MHRT). A person can choose to have a private solicitor or barrister represent them, although they must pay for any private legal services.
Fitness to be tried
At any time after a person is charged by police questions may be raised as to whether a person is fit to be tried. This will depend on the person’s ability to understand what is happening at the trial, to give their side of the story and to give instructions to their solicitor. Fitness to be tried may be affected by mental illness, intellectual disability or brain damage.
The question of fitness is usually raised when a person goes before a magistrate in order to be charged with an offence, but it can be raised at any time either by the prosecution or by the person’s lawyers. If a question of fitness is raised, the person will appear before a judge for a fitness hearing. During this hearing, the judge will only consider the issue of whether the person is fit to be tried. No other issues will be canvassed at this time.
This part of the proceedings will not be conducted in the usual adversarial manner of a criminal trial, but will be conducted by the court as an inquiry. If the judge decides the person is fit to be tried, a normal criminal trial will then take place, but if the jury finds they are not fit to be tried, the case will be referred to the MHRT for a fitness hearing (described below).
Unfit to be tried by the Court
After a Court finds a person unfit to be tried, the MHRT conducts a hearing to decide whether the person will be fit to be tried for the offence during the next twelve months. The Tribunal then sends its decision to the Court, and the Director of Public Prosecutions.
If the MHRT decides that the person will not be able to be tried, then the court will obtain advice from the Director of Public Prosecutions as to whether further proceedings will be taken in respect of the offence. If further proceedings are to occur, the court will hold a special hearing, which is similar to a criminal trial. If, after the special hearing, it is found that the person committed the offence, the Court returns a qualified finding of guilt. Although this is not a criminal conviction, the Court must impose a ‘limiting term’. This is an estimate of the sentence that would have been imposed if the person was convicted of the offence. See ‘Special Hearings’ below for a more detailed explanation.
Bail
If a person is found unfit to be tried, they can get bail if the court considers it appropriate. If they want bail, they should discuss the matter with their solicitor so the proper application can be made.
Special hearings
If the MHRT finds that they will not be fit to be tried within twelve months, they cannot be dealt with in an ordinary criminal trial. Instead, the judge will conduct a special trial to decide the issue of guilt or innocence. This is called a ‘special hearing’ to acknowledge the fact that the evidence available to the court will be limited because the person is unfit. This hearing is not recorded as a criminal trial, and the jury can return one of four different verdicts:
- Not guilty;
- Not guilty on the grounds of mental illness;
- That on the limited evidence available, accused person committed the offence charged; or
- That on the limited evidence available, the accused person committed an alternative offence to the offence charged.
Not guilty
If a person is found not guilty they will be acquitted, just as in an ordinary criminal trial. If they are found not guilty on the grounds of mental illness, they will be held in a forensic hospital. Their case will be reviewed at least once every six months by the MHRT. The MHRT makes recommendations in relation to their care, treatment and detention, including leave privileges and ultimate release. The Minister for Health and the Executive Council approve or disapprove the MHRT’s recommendations.
If release is recommended, it will be subject to conditions and their case will continue to be reviewed by the MHRT at least once every six months.
The person will only stop being a forensic patient when the MHRT recommends, and the Executive Council approves, a recommendation of unconditional release.
Not guilty by Reason of Mental Illness
At a trial or special hearing, the Court may find a person not guilty by reason of mental illness and refer the matter to the Tribunal. The person must then be detained in a hospital or prison as a forensic patient until released in accordance with a Tribunal recommendation. The Tribunal conducts reviews and makes recommendations to the Minister for Health. The Tribunal may not recommend the release of a forensic patient unless it is satisfied, on the evidence available to it, that the safety of the patient or any member of the public will not be seriously endangered by a person’s release.
Guilty at a special hearing
If someone is found guilty of an offence or another offence during a special hearing, the court will impose a sentence on them, as it would in an ordinary criminal trial. However, because they have been found unfit to stand trial, the sentence is called a ‘limiting term’ and they will be treated differently to offenders who have been sentenced. They will be referred to the MHRT, who will consider:
- Whether they are experiencing a mental illness; and/or
- Whether they are experiencing a mental condition for which treatment is available in a hospital.
The Court will consider these recommendations and make an order as to whether the person should serve the sentence, and if so, where and how. The Court may then refer the case to the MHRT to be reviewed at least once every six months until the limiting term expires.
Fitness to be tried during a limiting sentence
From the time a court finds someone unfit to be tried, there is a one year period during which they may still be found fit to be tried. If this happens, the Director of Public Prosecutions can direct that they stand trial for the offence charged.
Release from a limiting term
If the MHRT considers the person is no longer a danger to themselves or the community, it will make a recommendation for release (either unconditionally or subject to conditions). This recommendation is sent to the Minister for Health. The Attorney General is informed of such a recommendation, and has the opportunity to direct further detention if it is considered an insufficient period of detention has been served, or if further charges are going to be laid.
At the end of a limiting sentence, the person will no longer be a forensic patient and they will be discharged. However, if they are still a ‘mentally ill’ person under the Act, the MHRT may make them a Continued Treatment Patient and deal with them in the same way as any other person who falls within the terms of the Act.
Review by the MHRT
When the MHRT reviews each case, it can make recommendations about:
- Detention (including release either unconditionally or subject to conditions);
- Continued care and detention; and/or
- Fitness to be tried.
The MHRT cannot recommend release unless it is satisfied that no one will be seriously endangered by the release. It cannot recommend release if the person is on remand pending a fitness inquiry.
Criminal conviction
A person can only have a criminal conviction recorded against them if they are found guilty of a criminal offence in an ordinary criminal trial. Where the court and Tribunal have decided a person is unfit to be tried, even if they are later found at a special hearing to have committed an offence, no criminal conviction will be recorded.
Developing a mental illness in prison
A convicted prisoner may become a forensic patient if they develop a mental illness while in prison. If this occurs, the Mental Health Act allows the Chief Health Officer of the Department of Health to order their transfer to a hospital, but only if two medical practitioners (one of whom must be a psychiatrist) certify they are ‘mentally ill’ under the Act.
Amendments to the Mental Health Act ensure that someone can only be transferred involuntarily to a hospital if they are a ‘mentally ill’ person under the Act.
Once a person is transferred from prison to a hospital as an involuntary patient, they must be brought before the MHRT as soon as is practicable, to allow the MHRT to review their case and make a recommendation as to continued detention, care or treatment. They will then be the subject of ongoing reviews at least once every six months until they are returned to prison, or their sentence expires.
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