Unfit offenders in NSW: paying the price for gaps in service provision

Abstract

The Mental Health (Forensic Provisions) Act 1990 (NSW) was amended in 2013 to include section 54 A, enabling an application to be made for the extension of a forensic patient’s status. Thirteen patients were subject to an extension order between 2014 and 30 June 2018. Shared characteristics of these forensic patients were considered with a view to identifying the types of patients involved in these applications and the gaps in service provision that this might reflect. Nine out of the 13 patients subject to an extension order had a background of sexual offences, and all patients had either an intellectual disability and/or complex comorbid disorders, such as severe personality disorder. The extension orders coincide with gaps in the service provision in relation to the management of certain complex mental disorders, intellectual disability and problematic behaviours that lead to justice system involvement. The authors discuss the potential implications that these findings have for future resource allocation, legislative reform and service provision.

Introduction

Preventative detention has become part of the legal and political landscape in Australia in the management of high-risk offenders. This has arisen in the context of an increasingly risk-averse society and in spite of vocal opposition from human rights advocates (including a successful challenge to the Human Rights Committee).¹ The preventative detention legislation in New South Wales, the Crimes (High Risk Offenders) Act 2006, has highlighted a number of complex difficulties in the management of high-risk offenders, including the purpose and effectiveness of the legislative regime in reducing reoffending; the reliability of risk assessment; and the protection of individual rights particularly with regard to procedural fairness.² Additional complexities are apparent in the application of preventative detention legislation to the unfit for trial. It appears that amendments to the Mental Health (Forensic Provisions) Act 1990 that allow for the extension of terms for forensic patients who are unfit for trial on the basis of risk are a measure designed to address gaps in the available resources to manage those with severe mental disorders who have challenging behaviours that bring them into contact with the justice system. However, in the authors’ opinion, this legislation is not likely to address those service gaps. An analysis of the relevant case law has been undertaken in an attempt to identify the characteristics of those persons impacted by preventative detention legislation relating to the unfit for trial and further to highlight the ethical and practical consequences of that legislation.

Background

The Mental Health (Forensic Provisions) Act 1990 (NSW) (‘the Forensic Provisions Act’) provides a legislative framework for the management of mentally disordered offenders in New South Wales. Under that act, if a person has been found by the Court to be unfit for trial, the matter is referred to the Mental Health Review Tribunal (MHRT).³ If the MHRT determines that the person will not become fit within 12 months, they must notify the Office of the Director of Public Prosecutions (ODPP).⁴ Unless the ODPP notifies the Court that they intend to take no further proceedings in the matter, a person found to be unfit for trial must proceed to a special hearing.⁵

Verdicts available to a jury or a court at a special hearing include not guilty; not guilty by reason of mental illness; that on the limited evidence available, the accused person committed the offence charged; and that on the limited evidence available, the accused person committed an alternative charge.⁶ If the person is found to have committed the offence or an alternative offence charged, the court must nominate a term in respect of the offence, being the best estimate of the sentence the court would have considered appropriate if the special hearing had been a normal trial and the person had been found guilty.⁷ Persons found unfit for trial (section 14) and persons subject to a limiting term (section 23) are deemed forensic patients.⁸ A forensic patient may be detained, released or subject to conditions as determined by the MHRT. The effect of the court imposing a limiting term is detention in either prison or in a mental health facility if the person experiences a mental illness or mental condition.⁹

If the MHRT is to conditionally release or unconditionally release a forensic patient who is subject to a limiting term, they must be satisfied that the safety of the patient or a member of the public will not be seriously endangered by the patient’s release and the patient has spent sufficient time in custody.¹⁰ Forensic patients with a mental illness who are subject to a limiting term are frequently detained in custody until a bed becomes available in the high secure Forensic Hospital.¹¹ These patients can be reclassified as an involuntary patient during the last six months of their limiting term.¹²

In 2013, the Forensic Provisions Act was amended to allow for an extension of a patient’s forensic status on application by the Attorney-General of New South Wales or the Minister for Mental Health.¹³ Section 54 A of the Forensic Provisions Act provides that a forensic patient’s status may be extended in accordance with schedule 1 of the act, specifically in terms that the Supreme Court may make an order for the extension of a person’s status as a forensic patient if the court is ‘satisfied to a high degree of probability that’:

2(1)(a) the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases to be a forensic patient; and

2(1)(b) the risk cannot be adequately managed by other less restrictive means (including classification as an involuntary patient under section 53).

The standard of proof is expressed in almost equivalent terms to that in the Crimes (High Risk Offenders) Act 2006 (CHROA), notably that the court is ‘satisfied to a high degree of probability’ that there is ‘an unacceptable risk’. However, the risk identified under the Forensic Provisions Act is that of ‘causing serious harm to others’ rather than a ‘serious sex offence’ or a ‘serious violent offence’ required under the CHROA.¹⁴

Characteristics of offenders subject to extension orders

Background statistics

In New South Wales, as at 30 June 2018, there were 448 forensic patients.¹⁵ This includes those patients found not guilty by reason of mental illness, unfit for trial and subject to a limiting term or extension of forensic status. There were 24 forensic patients subject to a limiting term as at 30 June 2018, and of those, 10 forensic patients were on extension orders.¹⁶

Methods

All available published judgments relating to the applications for extension of a patient’s forensic status pursuant to section 54 A of the Forensic Provisions Act were reviewed utilising a thematic analysis from when the provision was enacted until 30 June 2018.¹⁷ The judgments were identified by conducting searches using legal databases such as austlii (Australian Legal Information Institute), casebase (Lexus Nexus) and NSW Judgments and Decisions.¹⁸ The characteristics of patients who were subject to extension applications were considered, including the type and nature of the index offence(s); the presence of a mental disorder or intellectual impairment; and the placement of the patient (correctional centre, hospital or community). The success or failure of the application and the reasons for the outcome were considered.

Results

Since 2013, 13 patients have been the subject of 18 applications for extension of their forensic status. Two applications were refused and three were still pending at 30 June 2018. Table 1 lists the 19 applications for extension of forensic status as at 30 June 2018. One patient, McGuire, had four separate orders for extension of his forensic status granted. Fifteen applications have been brought by the Attorney-General and three applications by the Minister for Mental Health. Only one of the patients was in the community at the time the application was sought. All other patients were either in a correctional centre or a mental health facility, and the extension of forensic status resulted in their ongoing detention in that setting. Of those patients, 8 out of 12 forensic patients were in a correctional centre. Of the 12 patients who have been subjects of applications with published decisions at either the interim and/or substantive hearing stage, 1 was a woman,¹⁹ and ages ranged from 26 to 71 with an average age of 50 years.

Table 1.

Reported Supreme Court Decisions as at 30 June 2018.

Case Name	Outcome
Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288	12 month order granted
Attorney-General of NSW v McGuire [2016] NSWSC 158	12 month order granted
Attorney-General of NSW v McGuire [2016] NSWSC 1189	12 month order granted
Attorney-General of NSW v McGuire [2017] NSWSC 1572	12 month order granted
Attorney-General of NSW v CD [2016] unreported NSWSC	3 year order granted
NSW Minister for Mental Health v BB [2015] NSWSC 1418	2 year order granted
Attorney-General of NSW v Doolan (No 2) [2016] NSWSC 107	5 year order granted
Attorney-General of NSW v TP by her tutor Jennifer Thompson (No 2) [2015] NSWSC 1955	No order granted
Minister for Mental Health v Paciocco [2017] NSWSC 4	14 month order granted
Attorney-General of NSW v Boyce (No 2) [2017] NSWSC 648	5 year order granted
Attorney-General of NSW v Kapeen [2017] NSWSC 685	1 year order granted
Attorney-General of NSW v Huckstadt (No 3) [2017] NSWSC 944	18 month order granted
Attorney-General of NSW v Kereopa (No 2) [2017] NSWSC 928	2 year order granted
Attorney-General of NSW v MZ [2017] NSWSC 1773	No order granted
Attorney-General of NSW v Christian (No 2) [2018]	2 year order granted
Minister for Mental Health v Paciocco [2018]	Pending at 30 June 2018
Attorney-General of NSW v Kapeen [2018]	Pending at 30 June 2018
Attorney-General of NSW v Ramirez [2018]	Pending at 30 June 2018
Attorney-General of NSW v Skerry [2018]	Pending at 30 June 2018

Nine of the 13 patients had committed sex-related offences and 4 had committed other offences. At least 9 of the 13 patients had a diagnosis of intellectual disability or cognitive impairment from a cause other than severe mental illness. At least four of the patients had been diagnosed with a severe personality disorder. All 13 patients had either an intellectual or cognitive disability or a severe personality disorder. In relation to at least two patients, there was disagreement regarding diagnoses that impacted on the patient’s treatment and management.

Comparatively under the CHROA legislation, over the same period there have been 14 extended supervision orders granted in relation to high-risk violent offenders and 58 extended supervision orders granted in relation to high-risk sex offenders. Two continuing detention orders were granted in relation to high-risk violent offenders and two continuing detention orders granted in relation to high-risk sex offenders.

Analysis of results

Nature of mental conditions attracting extension

The review of forensic patients subject to extension orders suggests that those patients who have had an extension of their forensic status are likely to have either intellectual or cognitive impairments and/or severe personality disorders and a background of sexual offending. The majority of these patients have remained in a correctional facility and therefore not progressed in their treatment or management to a therapeutic environment that could safely and effectively manage their risk in the least restrictive manner. The rest of the patients had recently been transferred to the high secure Forensic Hospital after a prolonged delay. None had received comprehensive therapeutic management to directly address their mental disorders and related offending prior to the extension application.

There are a number of factors likely to have impacted on the perceived need for an extension of the patients’ forensic status including: a lack of adequate and safe risk-management plans for discharge into the community; lack of available facilities for integration into the community; lack of treatment or appropriate assessment and management in correctional facilities; extended delays in accessing a bed in an appropriate facility (such as the Forensic Hospital); and complex disorders giving rise to differences of opinion in relation to diagnosis and management. Ultimately all of these factors arise from a lack of suitable and available resources for a complex but small group of patients.

This review suggests that patients subject to extension of their forensic status have a common feature, that being they all had disorders that were not adequately treated in prison. The forensic status of these patients was arguably extended due to the lack of access to appropriate care and treatment and resulted (in most cases) in the ongoing detention in a prison setting. For instance, nine of the successful applications for an extension order involved those found to have committed sexual offences. Forensic patients, subject to limiting terms or not guilty by reason of mental illness, are not likely to benefit from correctional sex-offender programs available to general offenders in prison settings. If a forensic patient is not in a prison setting then they are not eligible for services, such as sex-offender management provided by corrective services. In any event, there is concern that these group cognitive-behavioural programs do not alter future outcomes, including reoffending outcomes, and for those with mental disorders the evidence is even less clear.

A high proportion of applications for extension orders involved forensic patients with intellectual disability or complex comorbid disorders (personality disorder and/or severe mental illness). The prison environment is arguably unable to provide adequate treatment for persons with complex comorbid disorders, given that these persons require comprehensive multidisciplinary care in a therapeutic environment.

Extension orders, a flawed stop gap measure for failing services?

The Honourable Greg Smith, Attorney-General and Minister for Justice stated in the second reading speech introducing the Mental Health (Forensic Provisions) Amendment Bill that it ‘addresses the gap by ensuring that the Mental Health Review Tribunal can continue its oversight of these forensic patients in limited circumstances, making sure they receive the help they need’. The legislation is premised on protecting the community²⁰ as opposed to ensuring the patient receives ‘help’. The test for a court when making an extension order is confined to determining whether ‘the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient’.²¹ The test for the Tribunal to consider when determining whether a person should be released from a place of detention is similarly framed in terms of community protection.²² Risk to others is the bench mark rather than a mechanism for ‘making sure’ the person receives help. Further, there is no mechanism for the Supreme Court or the Tribunal within the legislation that enables those bodies to ensure the patient accessed the necessary help or treatment.

Whereas the legislative scheme stands at the intersection of criminal and health law, a tendency toward making orders premised on attempting to ensure the person is placed in an environment that provides the best care and treatment has been adopted by the Court. As an example, Campbell J stated in Paciocco: ‘I consider there is a better chance of him receiving appropriate treatment in the Forensic Hospital if he continues at least in the short term as a forensic patient’.²³ His Honour recognised the ‘management of the risk is bound up with appropriate treatment and the appropriate treatment overwhelmingly seems to be admitting him to the Forensic Hospital. Staying in the Long Bay [Prison] Hospital may exacerbate his symptoms, doing nothing about his aggressiveness and placing staff at risk’.

However, the Court and Tribunal have been shown to be impotent in ensuring that appropriate care and treatment is implemented. That was borne out in the Paciocco case, where despite the extension of Mr Paciocco’s status being predicated on his need for care in the Forensic Hospital, he continued to be detained in the prison hospital and was not transferred to the Forensic Hospital until December 2017 (11 months later). The result is that courts are often faced with a person detained in a place that is not the least restrictive, safe and effective environment and who requires care and treatment. In circumstances where the most appropriate place is not immediately available, a court is confined to making an extension order resulting in the person remaining in a restrictive environment such as a prison, which may not be either safe or effective.

In the Kapeen case,²⁴ Mr Kapeen had schizophrenia and an intellectual disability. He had been detained within the prison hospital at Long Bay Correctional Centre for his limiting term. Justice Beech Jones’ comments at [101] and [102] further highlight the circularity of the arguments for an extension order and the impotence of the Court in being able to address the issues in question, as follows:

In his submissions, Mr McGrath described his potential path of reasoning as ‘Kafkaesque’ in that the State, via the Attorney General, achieves its aim of extending Mr Kapeen’s forensic status because the State has not taken steps to secure Mr Kapeen a place in a suitable mental health facility or explained why that has not occurred while, at the same time, relying on expert evidence from Dr Eagle, stating that that was the most suitable accommodation.

I agree that this position is unsatisfactory, bordering on the totally unacceptable. It is inconsistent with the tenor of the various legislative schemes for a person’s status as a forensic patient to be extended in such circumstances. It is difficult to see how it is an effective use of the State’s resources to keep Mr Kapeen at Long Bay Hospital and bring this application rather than finding accommodation for Mr Kapeen in a secure mental health facility under the auspices of the MHA. That said, this Court is not an inquisitorial body and the public safety objects of Schedule 1 nevertheless require the extension of Mr Kapeen’s status as a forensic patient.

The Attorney-General further stated during the second reading speech that where a person is subject to an extension order, and thus continues to be subject to the jurisdiction of the Tribunal pursuant to reviews conducted under s 47 of the Act, consideration will necessarily be given to whether the person has become fit to stand trial. The relevant section states: ‘on reviewing under section 46 the case of a forensic patient who is subject to a finding that the person is unfit to be tried for an offence, the Tribunal must make a recommendation as to the fitness of the patient to be tried for an offence’.

A forensic patient who is subject to an extension order cannot simultaneously be subject to a finding that they are unfit to be tried for the offence that led to the imposition of the limiting term. The issue of fitness necessarily ends at the cessation of the limiting term. An extension order is only made after the cessation of the limiting term. Further, the legislative scheme does not create an avenue for a person subject to an extension order to be dealt with if found fit to be tried. The scheme is based on a person who is subject to a limiting term either returning to court to stand trial for the offence(s) that led to the imposition of the limiting term, or the person is released from detention if the Office of the Director of Public Prosecutions decides not to prosecute.²⁵ Conversely, the legislation provides the Supreme Court with the power to revoke an extension order.²⁶ The Court’s revocation power is the sole mechanism allowing an extension order to cease during the period in which is operative.

Discussion

Incarcerating the mentally ill: inadequate treatment in prisons

In Australia, New Zealand and internationally there has been increasing awareness of the risks associated with incarcerating the mentally ill and, in particular, the involuntary treatment of the mentally ill in correctional facilities.²⁷ The mentally ill who are placed in prisons have been reported to experience increased risk of deterioration and victimisation.²⁸ Inadequate mental health treatment has been associated with an increased risk of reoffending in persons with mental health disorders.²⁹ It is suggested that mentally ill prisoners should receive equivalence of care with the general population, although given the higher proportion of mental disorders in prison and the more complex, severe needs of prisoners this may result in the need for more intensive and integrated services.³⁰

In a review of appropriate guidelines to ensure the safe and effective treatment of the mentally ill in prison, it was noted³¹ that four principles emerge from the national and international literature, including:

1. There should be no forcible treatment of mentally ill persons without consent;

2. Mentally ill persons should not be denied the treatment they require in an appropriate environment for that care;

3. Medical care or treatment should be equivalent to that provided to the general public; and

4. Staff should treat all persons deprived of liberty with humanity and respect for their human dignity.

In the MHRT 2017/2018 annual report³² it was reported that of the 448 forensic patients (including limiting term patients) about 16% remained in custody. It was further noted that forensic patients could ‘wait between 18 months to two years for admission to the Forensic Hospital after their court proceedings have concluded’.³³ In the MHRT 2016/2017 annual report it was noted that forensic patients could ‘wait over a year for admission to the Forensic Hospital after their court proceedings have concluded’, indicating that waiting periods for the Forensic Hospital were increasing, not decreasing. It should also be noted that forensic patients, given the nature and impact of their underlying mental disorders on the processes of the criminal justice system, can take much longer than other individuals to have their court proceedings finalised.

Notably, the report³⁴ observed:

[D]elays in admission to a mental health facility mean that patients struggle to maintain optimism and hope for the future, which are key components to a successful recovery. Patients learn prison coping mechanisms that can take years to unlearn. For a forensic patient, time spent in prison is not merely treading water. All too often, the forensic patient is going backwards. Where a person has not been convicted of an offence, this is unconscionable.

The 2017 MHRT annual report also noted ‘a readily identifiable and indeed physically confined cohort of people in need of mental health attention’ and ‘a serious lack of such resources in prisons.’³⁵ The report also commented that there were ‘instances of delay in implementing MHRT orders regarding forensic patients’ and that this was in some cases caused by ‘hospital administrators sitting on a decision while they seek legal advice rather than implementing the decision’. The report emphasised the ‘independent decision making power of the Tribunal’.³⁶

NSW health and correctional facilities arguably appear to be failing to abide by these principles with high unmet need for treatment of the mentally ill; involuntary detention of the severely mentally ill within the prison; and unequal standards of care or treatment. It may similarly be argued that the failure of the MHRT to make orders in accordance with the legislative mandate to ensure patients receive care and treatment in the least restrictive environment, as opposed to bureaucratic failures in the provision of care and treatment for both detained and released patients, perpetuates the inertia.³⁷

Unequal treatment of mentally ill offenders when compared to other high-risk offenders

A troublesome aspect to the legislative schemes are the comparative requirements to be subject to an order and the tests for risk of harm. The Law Reform Commission recommended the test be ‘consistent with the CHROA to the greatest extent possible’. However, the Commission found the test could not be the same as that under the CHROA, because:

[T]he CHROA is framed around the fact that the person concerned has committed a serious offence and the risk that justifies continued detention or supervision is the unacceptable risk of serious reoffending. Because forensic patients have not been convicted of an offence, the nature of the risk must be differently framed. The CHROA also assumes that the person concerned is held under a sentence of imprisonment, whereas this is not the case for forensic patients.³⁸

Under the CHROA, both past offending and risk of reoffending are defined in terms of ‘serious reoffending’³⁹ which are confined within the definitional parameters of serious sex or violence offence.⁴⁰ To be subject to an order made pursuant to the CHROA, the person must both have committed a serious offence as defined and also pose an unacceptable risk of committing another serious offence (as defined) if not subject to an order.

It seems curious that the commission concluded that the nature of the risk must be ‘differently framed’ for a limiting term to be imposed and that the Court must find that ‘on the limited evidence available, the accused person committed the offence charged’.⁴¹ Although not convicted of an offence, a person subject to a limiting term is necessarily found to have committed the offence that led to the imposition of the limiting term.

In its report, the commission was silent in relation to the type of offending the person had been found to have committed save that they are a forensic patient subject to a limiting term or an existing extension order. This leads to the possibility that a person who had committed an offence and been subject to a limiting term might be subject to an extension order under the Forensic Provisions Act but could not be subject to an order under the CHROA on the basis that the offence is not capable of satisfying the definition of ‘serious offence’.⁴² In Kereopa this possibility was recognised as a reality, for as Davis J stated:

The offending making up the index offences could well be less serious than for high risk offenders and the unacceptable risk being guarded against could well be less because it is simply ‘serious harm’ and not the commission of a serious violence offence or a serious sex offence. That was why in Attorney General of New South Wales v McGuire [2013] NSWSC 1862 I said that the learning that has grown up in relation to the CHROA should be appropriately applied to Schedule 1 of the MHFPA. I agree that the net is cast wider for forensic patients and to that extent the caution suggested should be exercised.

The unacceptable risk under the MHFPA is causing ‘serious harm to others’. What authority there is on these undefined words tends to point to the inclusion of behaviour that would not extend nearly as far as the behaviour that constituted a serious sex offence or a serious violence offence. The matter is highlighted in the present case where the index offences did not involve personal violence.⁴³

In its report, the Commission recommended harm be defined in terms of ‘serious physical or psychological harm to others’.⁴⁴ However, the legislation embraced the broader and ill-defined test used under the Mental Health Act for involuntary detention in adopting the term ‘serious harm’.⁴⁵

The difference between those subject to the CHROA and those subject to the Forensic Provisions Act is that the latter invariably experience a disability that caused them to be found unfit to stand trial. Save continuing to be subject to the control of the MHRT after having their forensic status extended, there is no reason why this population should be treated differently to those who do not experience such disability when considering whether they can be subject to preventative control and the test used to determine risk to others. In fact the UN Convention on the Rights of Persons with Disabilities (CRPD) clearly states that individuals with disabilities should receive the same rights, care and treatment as those without a disability.⁴⁶

In effect, the manner in which the legislation has been implemented and the relative ease in which it can be applied means there is an increased likelihood this population will spend more time in prison, both prior to the expiry of their limiting term and thereafter when subject to an extension order. That is because the ability to extend a person’s forensic status creates neither need or urgency to transition the patient out of prison or other place of detention, especially where they are not subject to a non-parole period. This situation seems clearly inconsistent with a number of the CRPD articles, including failure to fulfill article 5 in regard to equal protection and benefit of the law, article 14(1)(b) in regard to disability justifying the deprivation of liberty and article 15 in regard to degrading treatment consequent to being detained in a prison merely because other less restrictive and therapeutic environments were not available. Such inconsistencies were recognised by the United Nations Committee on the Rights of Persons with Disabilities following a communication submitted by Marlon Noble.⁴⁷ Although Noble’s complaint related to being subject to a limiting term under West Australian law, which is fundamentally different from the situation in NSW, the similar disadvantages experienced by those subject to either regime consequent to experiencing similar disabilities is telling. Fundamentally, Noble and his NSW counterparts face protracted state control, including incarceration within prison as accommodation for those with disability, in a manner that results in detriment that is inconsistent with the CRPD.⁴⁸

Often the end result is that people such as Mr Kereopa have their status as a forensic patient extended in circumstances where but for experiencing a disability they would not be subject to such preventative control. Of significance is where a person is detained in a correctional centre, the extension of their forensic status often results in a period of detention equivalent to a CDO. As an example, Mr Kereopa was not only detained in a number of correctional centres for the three years and three months of his limiting term, that detention continued after his forensic status was extended.⁴⁹ The evidence before the Supreme Court was that continued incarceration in a correctional centre was not only detrimental but increased risk to the community.⁵⁰ Although the Court was informed the Tribunal had indicated it was investigating whether a medium secure forensic mental health facility ‘could be found’, ‘the reality was Mr Kereopa had not been afforded the opportunity to safely transition to forensic hospital care and into community living whilst subject to the limiting term. At the time of the Supreme Court hearing, Mr Kereopa had been incarcerated for three years and seven months within a correctional setting. This raises the question, if given the opportunity during the period of his limiting term to transition toward community living through transfer to a forensic mental health facility followed by supported community-based accommodation under the oversight of the MHRT, would Mr Kereopa have required an extension of his forensic status?

Future directions

In terms of moving forward, it is suggested that there needs to be a closer consideration of the needs of this cohort of forensic patients in New South Wales, in addition to the treatment and rehabilitation needs of other forensic patients and those mentally ill and cognitively impaired persons detained in correctional settings. Mentally ill and cognitively impaired persons in correctional facilities ought to be prioritised for appropriate treatment at the time of entering custody. This would arguably reduce the overall burden of mental disorder on the system. Resources and processes that apply to these patients (including discharge planning and community resources such as supported accommodation) need to be reconsidered in light of the mounting evidence of inadequacies in the care and management of this group of patients. A review of international systems, law and literature may be warranted to inform the future care and management of this group.

Conclusion

The amendments to the Forensic Provisions Act that allow for an extension of a forensic patient’s status appear to have been used to compensate for inadequate treatment of mentally ill prisoners and an overall lack of mental health and other clinical services for offenders. It is apparent that the patients who have had their forensic status extended have been charged with sexual offences and/or have severe, complex needs. The majority of patients appear to have had their treatment or rehabilitation needs delayed or postponed due to lengthy stays in correctional settings. The amendments appear to be operating as a stop-gap measure for inadequate services for this cohort of patients. However, the amendments do not appear to have provided a helpful solution, often colluding with service providers in allowing for further delays in patients’ ability to access necessary care and treatment in a suitable environment. This is at the cost of the liberty and rights of the individual forensic patient, for instance by unnecessarily extending their time in prison or in detention due to resource limitations and/or lack of access to needed treatment. This also is at the cost of the community who may be placed at risk by a person who has not undergone appropriate forensic mental health care.

Further, the extension of a patient’s forensic status is essentially preventative detention. The legal threshold to extend the patient’s forensic status would appear to be much lower than other high-risk offenders subject to preventative supervision or detention. The legal process as it applies to this particularly disadvantaged group would appear to substantially abrogate their human rights for equal treatment under the law.

Finally, the effect of extending a limiting term would appear to offend general sentencing principles despite the legislation suggesting that the limiting term should represent an equivalent term (or the best estimate of the sentence)⁵¹ that the offender would have received for the same offence. Sentencing principles would also require that the term be no more severe than is necessary to meet the purposes of sentencing (parsimony); be proportionate to the gravity of the offending behaviour; and similar to sentences imposed for similar offences (parity). By extending a forensic patient’s status, in some cases repeatedly, these principles are not followed, and forensic patients are spending a significantly longer period being detained in custody than their offending peers. The rationale for an extension order has been reported in parliament as for the purpose of preventing harm to the community. However, this is being undertaken without the equivalent protections that are afforded to other mentally ill persons and without clear Australian precedent in the cognitively impaired.

Ethical standards

This article does not contain any studies with human participants or animals performed by any of the authors.

Declaration of conflicts of interest

Dr Kerri Eagle has declared no conflicts of interest.

Mr Todd Davis has declared no conflicts of interest.

Dr Andrew Ellis has declared no conflicts of interest.

Ethical approval

All procedures performed in studies involving human participants were in accordance with the ethical standards of the institutional research committee at the University of NSW, Randwick and with the 1964 Helsinki declaration and its later amendments or comparable ethical standards.

Informed consent

Informed consent was obtained from all individual participants included in the study.