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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.
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.
Notes
1 Human Rights Committee, Fardon Communication, UN Doc CCPR/C/98/D/1629/2007 and Tillman Communication, UN Doc CCPR/C/98/D/1635/2007 (2010). See also I Freckelton and P Keyzer, ‘Indefinite Detention of Sex Offenders and Human Rights: The Intervention of the Human Rights Committee of the United Nations’ (2010) 17(3) Psychiatry Psychol Law 345.
2 For a broader discussion, see K Eagle and A Ellis, ‘The Widening Net of Preventative Detention and the Unfit for Trial’ (2016) 90 ALJ 172.
3 Mental Health (Forensic Provisions) Act 1990 s 14.
4 Forensic Provisions Act (n 3) s 16.
5 Forensic Provisions Act (n 3) s 19.
6 Forensic Provisions Act (n 3) s 22.
7 Forensic Provisions Act (n 3) s 23.
8 Forensic Provisions Act (n 3) s 42.
9 Forensic Provisions Act (n 3) s 27 and see Director of Public Prosecutions v Khoury [2014] NSWCA 15.
10 Forensic Provisions Act (n 3) ss 43 and 74(e).
11 The Forensic Hospital is an ‘Inpatient Declared Mental Health Facility’ pursuant to the NSW Government Gazette 26 November 2008 and provides the highest level of security for such facilities in NSW outside the correctional environment.
12 Forensic Provisions Act (n 3) s 53.
13 Forensic Provisions Act (n 3) s 54A.
14 Crimes (High Risk Offenders) Act 2006 ss 5 and 5A.
15 R Cogswell, ‘Mental Health Review Tribunal Annual Report’ 2017/18 5.
16 Cogswell (n 15) 48.
17 The applications for extension orders resulted in published decisions of the Supreme Court of NSW as described in Table 1.
18 A publicly accessible database of NSW Judgments is available at courts.justice.nsw.gov.au. accessed 22 April 2020.
19 Attorney-General of NSW v TP by her tutor Jennifer Thompson (No 2) [2015] NSWSC 1955.
20 G Smith, ‘Mental Health (Forensic Provisions) Amendment Bill Second Reading’ (13 November 2013) 55 www.parliament.nsw.gov.au/bill/files/3232/2R%20Mental%20Health.pdf. accessed 22 April 2020.
21 Forensic Provisions Act (n 3) sch 1 cl (2)(1)(a) A forensic patient can be made the subject of an extension order as provided for by this Schedule if and only if the Supreme Court is satisfied to a high degree of probability that: (a) the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means.
22 See s 43 regarding release and s 49 regarding leave of the Forensic Provisions Act (n 3).
23 Minister for Mental Health v Paciocco [2017] NSWSC 4 at [44].
24 Attorney General for NSW v Kapeen [2017] NSWSC 685 (22 May 2017) at [101]–[102].
25 Forensic Provisions Act (n 3) s 29.
26 Forensic Provisions Act (n 3) cl 12.
27 See RANZCP Position Statement 93 (November 2017); T Vogel, S Lanquillon and M Graf, ‘When and Why Should Mentally Ill Prisoners Be Transferred to Secure Hospitals: A Proposed Algorithm’ (2013) 36 IJLP 281–86; N Konrad and A Opitz-Welke, ‘The Challenges of Treating the Mentally Ill in a Prison Setting: The European Perspective’ (2014) 11(5) Clin Pract 517–23.
28 Konrad and Opitz-Welke (n 27) 517–23.
29 Konrad and Opitz-Welke (n 27) 517–23.
30 United Nations Convention on the Rights of Persons with Disabilities (3 May 2008); United Nations General Assembly, ‘Standard Minimum Rules for the Treatment of Prisoners’ (2015) E/CN.15/2015/L.6/Rev.1; World Health Organisation, ‘Prisons and Health’ (2014) 88 www.euro.who.int/data/assets/pdffile/0005/249188/Prisons-and-Health.pdf. accessed 22 April 2020.
31 A Mackay, ‘Human Rights Protections for People with Mental Health and Cognitive Disability in Prisons’ (2015) 22(6) PPL 842–68, 844.
32 Cogswell (n 15) 5.
33 Cogswell (n 15) 7.
34 Cogswell (n 15) 6.
35 Cogswell (n 15) 4.
36 Cogswell (n 15) 4.
37 Mental Health Act 2007 s 68. Recognised as applying to forensic patients: Forensic Provisions Act (n 3) s 76B(1).
38 New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences – Report 138 (May 2013) at [11.79].
39 CHROA (n 14) s 4A.
40 CHROA (n 14) ss 5, 5A, 5B, 5C.
41 Forensic Provisions Act (n 3) s 22: Verdicts at special hearing (1) The verdicts available to the jury or the Court at a special hearing include the following: (a) not guilty of the offence charged, (b) not guilty on the ground of mental illness, (c) that on the limited evidence available, the accused person committed the offence charged, (d) that on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged.
42 CHROA (n 14) ss 4, 5(1) and 5A.
43 Attorney-General of New South Wales v Kereopa [2017] NSWSC 411 at [13]–[14].
44 New South Wales Law Reform Commission (n 38) at [11.82], which relevantly reads ‘the person poses an unacceptable risk of causing serious physical or psychological harm to others if the person were to cease to be a forensic patient’.
45 Mental Health Act 2007 (n 37) s 14 which relevantly states ‘a person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary: (a) for the person’s own protection from serious harm, or (b) for the protection of others from serious harm’.
46 United Nations Convention on the Rights of Persons with Disabilities (3 May 2008) A-RES/61/106 www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html. accessed 22 April 2020. Australia ratified the Convention in July 2008 and the Optional Protocol in 2009.
47 Views adopted by the Committee under art 5 of the Optional Protocol, concerning communication No. 7/2012. Adopted by the Committee at its sixteenth session (15 August–2 September 2016).
48 I Freckelton and P Keyzer, ‘Fitness to Stand Trial and Disability Discrimination: An International Critique of Australia’ (2017) 24(5) Psychiatry Psychol Law 770–83.
49 Kereopa (n 43) at [47].
50 Kereopa (n 43) at [66].
51 Forensic Provisions Act (n 3) s 23; see OFFICIAL REPORT OF MHRT PROCEEDINGS IN RELATION TO MR ADAMS AUTHORISED BY THE PRESIDENT OF THE TRIBUNAL [2013] NSW MHRT 1 for a discussion of the limiting term as a form of punishment.