The results of various studies conducted over the past few decades have shown that the prevalence of persons with mental disorders in the criminal justice system has increased showing that the system has failed to adequately address the issue of mental health in the worldwide community. Despite the treatment on offer for those persons with mental disorders, the identification – properly known as screening – has been deemed inefficient and inconsistent throughout Australia, prior to the time the offenders even enter into the criminal justice system. This renders Australia’s criminal justice system ineffective in achieving justice in cases involving mentally ill perpetrators. The report will discuss the following and address the legal and social issues surrounding the prosecution of mentally ill perpetrators.
2.0 Description of Social and Legal Issues
3.1 Social Issues
3.2.1 The lack of professional screening and health services in rural jurisdictions
This issue highlights the distinction between services on offer within the rural districts and major cities of Australia.
3.2.2 The compromising of the mentally ill perpetrators Health to themselves and the general community
The second social issue is an investigation into how the treatment of mentally ill perpetrators has demonstrated a decrease in formality and consistency.
3.2.3 The relationship between offending behaviour, mental illness and substance abuse
Persons with common mental disorders such as schizophrenia have been deemed a danger to society, and substance abuse is known to be a contributing factor to this theory.
3.2 Legal Issues
3.3.4 Police services and the informal responses to mental health cases
This legal issue addresses how police services are being given very little training into circumstances involving mentally ill perpetrators and examines how and why they are given no formal screening process in identifying those who have a mental disorder.
3.3.5 The court services and criminal proceedings in Australian courts
The following examination is based on a detailed analysis of the court process and why mental illness is dismissed on the basis of the insanity defence, commonly referred to in the QLD Criminal Code Act and in the NSW Mental Health (Criminal Procedure) Act 1990.
3.3.6 The screening tools used in the criminal justice system and the effectiveness of those tools
From the preceding report is can be determined that the early identification of mental disorders in criminal offenders is of paramount importance, and the ways in which these process’ are undertaken is of equal importance.
3.0 Explanation of Social and Legal Issues
4.3 Social Issues
4.4.7 The lack of professional screening and health services in rural jurisdictions
Despite the lack of available data, researchers have estimated that throughout the rural districts of Australia, persons with psychiatric disorders are increasing. Statistics also suggest that 30% of Australians living under these poor circumstances are not able to gain access to these essential health services (Boyd, 2006). The table for the current Australian Forensic Mental Health Services in Remote Areas shown in Appendix 1 shows the current mental health services available throughout the states of Australia. It shows that the rural areas and remote areas of Australia were commonly disregarded by the Australian Government mental health budget having as little as 1.49% of funds dedicated to the mental health service in the remote areas of Tasmania.
4.4.8 The compromising of the mentally ill perpetrators Health to themselves and the general community
Father Joe Caddy, a chairman of the Catholic Social Services Australia (CSSA) claims that in a recent study of Melbourne’s prisons conducted over a 5 year period suggests the behaviours of mental health patients are vulnerable to the development of criminal behaviours whilst learnt in prison. Therefore the time spent in prisons is compromising their behaviour, attitudes and any other mental capabilities. It is estimated that up to 80% of the inmates the Father Joe Caddy associates with require some form of mental health treatment where these disorders can range from anxiety, depression and even schizophrenia.
4.4.9 The relationship between offending behaviour, mental illness and substance abuse
Another recent study conducted by Mullen and Colleagues (2000) outlines and examines the violent acts and criminal behaviours of mentally ill perpetrators and how the effect of substance abuse can dramatically impact their actions. They found that persons whom exhibited an affective disorder, particularly schizophrenia, were often the most common individuals convicted in the justice system as outlined in the Associations between offence categories and substance misuse shown in Appendix
2. There were also various other studies conducted by other critically recognised researchers contributing to the Mullen and Colleagues investigation, which is shown in Appendix 2. (Walker and Seifer 1994, Binder and McNeil 1998, Tardiff 1982, Fottrell 1980, Karson and Beglow 1987, Powelll 1994, Sheridan 1990). Sokya (2000) concluded Mullen’s argument by noting, “there is substantial evidence for substance misuse being a major risk factor for violence and aggression in patients with mental disorders particularly schizophrenia”. (MULLEN, 2001)
4.4 Legal Issues
4.5.10 Police services and the informal responses to mental health cases
The first point of contact in the criminal justice system can often be critical, and when involving persons with a mental disorder, police are often confronted with the decision to arrest the offenders. Although many parts of various state legislations determine whether one is mentally unstable, the Crimes Act 1914 (Cth) in Appendix 3, does not properly define a ‘mental condition’, ‘mental illness’ or intellectual disability’. This gives police the unfortunate option to informally resolve the issue, take the person to hospital, or arrest them. In most cases imprisonment is the common outcome when involving mental health cases. One particular police service estimates that 50% of the high-risk incidents had a mentally ill perpetrator involved where these statistics are increasing by 10% each year (Rivers, Ross, Ogloff, & Davis, 2006), which calls for police officers to have increased training in the handling of mental illness incidents.
Part of the concern is that when police are confronted by these incidents, the cause of the person’s disorientation is often involving substance abuse, intoxication, or bad behaviour – which makes it difficult for police to decipher between whether a person has a mental disorder or is not attributed to mental illness. Out of the many jurisdictions surveyed by James R P Ogloff (2006), no jurisdiction applied any formal screening device where instead police must rely on pure instincts and their limited experience and training. This training can often be as little as 3 hours however varies throughout the country. (Rivers, Ross, Ogloff, & Davis, 2006)
4.5.11 The court services and criminal proceedings in Australian courts
Court services/programs in place to deal specifically with mentally ill perpetrators exist commonly throughout most states in Australia and in Queensland and New South Wales these services are very well developed with numerous staff employed. These staff are usually those persons working under the area of forensic mental health and are commonly psychiatric nurses or psychologists. Internationally these diversion programs have been introduced which are aimed at the early identification of mental illnesses. One such example of this program is the CREDIT/Bail support Program which is based in one of Australia’s local courts, however is yet to expand nationally. Another program yet to expand nationally is the mental health tribunal whom conduct mental health inquiries, make and review orders, and to hear some appeals, about the treatment and care of people with a mental illness.
Tribunals have been introduced into Victoria, NSW, ACT and QLD, but leaving WA, SA, NT and the rural area’s in Australia without any formal screening process in court (NSW Government, 2013). These programs show an inconsistency in the criminal justice system where the existence of these programs, like many other factors involved with mental health, differentiates between the court hierarchies and jurisdictions. Another such area is the definitions of mental illness used in Queensland are different from the definitions used in New South Wales as shown in the Queensland Mental Health Act 2000 and the New South Wales Mental Health Act 2007 in Appendix 4 and Appendix 5.
4.5.12 The screening tools used in the criminal justice system and the effectiveness of those tools
In recent years, formal methods of screening in the criminal justice system has been found superior over those made purely based on the assessor’s clinical judgement. However this formality is yet to reach Australia. Some of these tools include the Referral Decision Scale (RDS), The Brief Jail Mental Health Screen and the Jail Screening Assessment Tool.
An analysis was conducted by Grove, Zald, Lebow, Snitx, & Nelson (2000) where there were 163 studies with over 617 comparisons analysing whether mechanical actuarial prediction or subjective clinical prediction was deemed ‘better’. There were various factors involved in the study but found that 136 of the studies favoured actuarial prediction, 64 showed that neither method mattered, and 8 favoured clinical. Furthermore demonstrating that not only does the mechanical actuarial prediction offer reasonable judgement in decision-making but also was the favoured method of screening.
4.0 Evaluation of Social and Legal Issues
5.5 Social Issues
5.6.13 The lack of professional screening and health services in rural jurisdictions
Although mental health services are available throughout the major cities of Australia such as Brisbane, Melbourne and Sydney, access from rural jurisdictions is considered difficult and almost impossible, setting a flaw in the health and corrective services, leaving various community members frustrated. In respect to those persons in rural areas, every 43 per 100 000 people ages 15 – 24 commit suicide in the remote areas of Australia in comparison to every 24 per 100 000 people in major cities, demonstrating the lack of professional mental health services (Refshauge, 2012). This sets an obvious weakness in the current mental health legislations, where the system lacks the restrictions and guidelines to regulate tribunals in Australia, where as reflected by the given statistics, they should be further developed in rural and remote areas.
5.6.14 The compromising of the mentally ill perpetrators Health to themselves and the general community
There are numerous reasons why mentally ill perpetrators find prison and any other form of criminal imprisonment so traumatising. Mental health professionals describe that whilst in prison, persons with mental disorders often develop behaviours, which are considered violent, unhygienic or morally wrong. (Smalleger & Smykla, 2009, p. 477). Where they neglect things such as their personal hygiene, they begin to ignore orders, and can even often start to scream and bang on walls – demonstrating unwanted behaviours which can often lead to the perpetrator being imprisoned into solitary confinement. Due to the confinement the inmates mental condition may worsen, often not just harming themselves, but members of the community once released from prison. (Smalleger & Smykla, 2009, p. 477)
5.6.15 The relationship between offending behaviour, mental illness and substance abuse
In Appendix 2 where the table outlines the effect of substance abuse on those persons with mental disorders, it claims that the individuals convicted had the highest frequency when persons with affective disorders were associated with substance abuse. This is represented as 21% being the highest and most frequent prevalence of individuals committing offences. Thus, demonstrating that the current health and corrective services are neglecting the needs of persons with mental disorders where there is no law or legislation in restricting these persons from substance abuse. And as a result the current laws are failing to regulate the behaviour displayed by those persons with mental disorders who turn to drugs and other substances, therefore effecting the wide community.
5.6 Legal Issues
5.7.16 Police services and the informal responses to mental health cases
There is a liaison between mental health staff and the police but generally only in the major cities such as Brisbane, Melbourne and Sydney which then correlates with the social issue of inconsistency throughout the rural jurisdictions. Despite this access to the mental health services, the communication between the health and corrective services is considered frustrating, where police are unable to acquire detailed information on those who have mental disorders due to current restrictions outlined in the Mental Health Acts’ shown as the Queensland Mental Health Act an the New South Wales Mental Health Act. This effectively impacts the police force and their practises, which as a result affects those various members within the community.
5.7.17 The court services and criminal proceedings in Australian
It has been long speculated by Australian commentators to introduce a rule within the federal constitution on whether the states throughout Australia should oblige by the same laws. Thus far, the Australian government is yet to be convinced to introduce such a rule. However it is common throughout many areas of law that the inconsistency of legislation is impacted not only those individuals convicted but also in the wide community. For example a law in which permits mentally ill persons to be considered ‘mentally ill’ in Queensland, does not reflect that of the law in New South Wales. Demonstrating the flaw of inconsistency throughout the justice system.
5.7.18 The screening tools used in the criminal justice system and the effectiveness of those tools
The advancement and development of formal screening tools in the Australian criminal justice system is at an introductory level, where only in recent years has the Government come to realise the importance of formal screening. These developments have taken place in most metropolitan cities within Victoria, New South Wales, Queensland and South Australia, however is yet again unavailable in most rural jurisdictions (University of Wollongong, 2010). Due to the early stages of development, the tools currently diversify between the different states, where at the present time no current laws are in place to regulate these strategies. This calls for the Government to consider the consistency of their current laws surrounding formal screening tools where if left neglected, various community members will be left effected.
1. Police should require adequate training in the area of mental health, which will ultimately assist them in determining whether an individual is or may be mentally disordered. This is recommended so that the police understand and are capable of scenarios involving persons who are considered mentally disordered, so that they themselves are in no potential risk.
2. All individuals who go through the Australian criminal justice system should be screened (formally) for mental health. Where possible, a formal tool such as the Jail Screening Assessment Tool, should be used in this identification. In the absence of such a tool, the standard clinical screening should be undertaken by a nurse or mental health professional. This is done so in order to acquire ‘better’ and more reliable identification so that persons who are mentally disordered are properly treated and admitted into the appropriate facility.
3. There should be an improvement in the consistency throughout the courts of Australia, where programs aimed at supporting and identifying mentally ill perpetrators should be developed even further. This will help in the conducting of assessments and obtaining the information needed prior to the contact of the mental health services. This will help achieve justice fairly across all jurisdictions within every level and state of court.
4. The recommendations should be considered throughout the wide community, including the justice system in rural jurisdictions where consistency in the law is needed for the acceptance and understanding of legislation, where society as whole, needs to meet the requirements made by those legislations.
Given the above report, it can be concluded from the social and legal issues surrounding the way mentally ill perpetrators are admitted and screened into Australia’s criminal justice system, sets numerous flaws of which can be resolved through the use of the above recommendations. Thus, supporting the hypothesis that the mental health services in Australia are deemed inefficient and inconsistent throughout the criminal justice system.
Appendix 1 – Summary of Current Australian Forensic Mental Health Services Appendix 2 – Relationship between persons with mental disorders and
SECTION 16A of the Crimes Act 1914 (Cth)
* (2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court: * …
* (m) the character, antecedents, age, means and physical or mental condition of the person *
The Crimes Act 1914 (Cth) does not define ‘mental condition’, ‘mental illness’ or ‘intellectual disability’
‘mental illness’ – varies across different jurisdictions and also varies over time, however can be sumarised as, ’clinically recognised behaviours, or patterns, that cannot be ‘an expectable’ response to a particular event or situation and is a manifestation of a behavioural, psychological or biological dysfunction in the person’
QLD MENTAL HEALTH ACT 2000
NSW MENTAL HEALTH ACT 2007
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Freeman, K. (1998, October). Mental Health and the Criminal Justice System . (N. B. Research, Producer) Retrieved May 15, 2013 from http://www.lawlink.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/vwFiles/cjb38.pdf/$file/cjb38.pdf
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Refshauge, D. A. (2012). The mental health of prison entrants in Australia . Australian Institute of Health and Welfare, National Prisoner Health Census.
Rivers, G., Ross, S., Ogloff, J. R., & Davis, M. R. (2006). The Identification of Mental Disorders in the Criminal Justice System . Monash University, Centre for Forensic Behavioural Sciece, Victoria.
Schmalleger, F. & Smykla, J. (2009). Corrections in the 21st Century (4th Ed.). New York, NY: McGraw Hill.
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University of Wollongong. (2010, September). SCREENING AND ASSESSMENT TOOLS. Retrieved May 22, 2013 from http://ahsri.uow.edu.au/chsd/screening/index.html