MENTAL HEALTH DIVERSION LIST
EVALUATION REPORT
May 2009
Esther Newitt Victor Stojcevski
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Mental Health Diversion List Evaluation Report
Acknowledgements This report was made possible by a grant received from the Law Foundation of Tasmania. The evaluators would like to thank the Foundation for their financial assistance.
The evaluators would also like to thank all members of the Mental Health Diversion List Steering Committee for their efforts in overseeing the project and providing advice and feedback on the direction of the evaluation.
During the course of the project, the evaluators gained invaluable assistance from a number of different parties. Thanks go out in particular to Marita O’Connell and Kim Barnes (Forensic Mental Health Services) for all their time and assistance in helping to collect the data (including contacting case study participants) and for allowing the evaluators to be privy to a number of assessments and meetings. Thanks also go to John King (Tasmania Police) for providing access to information about participants’ criminal records.
The evaluators wish to thank all the stakeholders who graciously agreed to be interviewed for the purposes of this evaluation; Deputy Chief Magistrate Michael Hill, Magistrate Glenn Hay, Marita O’Connell, Kim Barnes, Craig Lewis, Mike Dewit, Kate Cuthbertson and Kim Baumeler.
The evaluators would also like to thank Hannah Graham (University of Tasmania, School of Sociology and Social Work) for her help and advice about how to approach the evaluation, Holden Ward (South Australian Magistrates Court Diversion Program) for explaining the intricacies of the South Australian data collection methods, Jodie Lydeker (National Justice Mental Health Initiative) and Jenny Fenton (Forensic Mental Health Services) for organising rooms for the case study interviewees.
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CONTENTS Executive Summary 4
Recommendations 7
1 Introduction 8
2 The Mental Health Diversion List 10 2.1 Background 10 2.2 Operation 10 2.3 Management of the MHDL 15 2.4 The Therapeutic Jurisprudence Approach 16 2.5 National Developments 20
3 Evaluation 21 3.1 Methodology 21 3.2 Project Logic Model 22 3.3 Quantitative Data 24 3.4 Qualitative Data 24
4 Literature Review 26 4.1 Mental Health 26 4.2 Key Conceptual Issues 28 4.3 Evaluations of other Mental Health Courts & Diversion Programs 34
5 Care and Service Providers 39 5.1 Survey 39 5.2 Analysing the Data 39
6 Intake Data 43 6.1 Scope of Data 43 6.2 Referrals and Representation 43 6.3 Charges and Offences 46 6.4 General Characteristics of MHDL Participants 48
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7 Process Evaluation 51 7.1 Aim 51 7.2 Scheduling Arrangements 51 7.3 Assessments 52 7.4 Pre-Court Meetings 53 7.5 In-Court Process 54 7.6 Bail Conditions and Reviews 62 7.7 Finalisation 63 7.8 Data Collection 65 7.9 Ten Essential Elements of a Mental Health Court 66
8 Re-Offending Outcomes 69 8.1 Aim and Approach 69 8.2 Offending Rates 69
9 Further Results 75 9.1 Other Outcomes 75 9.2 Treatment 75 9.3 Other Criminogenic Needs 76 9.4 Workloads and ‘special hearings’ under s 15 of the Criminal Justice (Mental Impairment) Act 1999 77
10 Conclusion 78
Reference List 79 Appendix 1 s4 Mental Health Act 1996 82 2 s16 Criminal Code Act 1924 83 3 Bail Conditions 84 4 s7 Sentencing Act 1997 85 5 Care and Service Provider Survey 86 6 South Australian Data Collection Sheet 88 7 Mental Health Diversion List Flow Chart 89 8 Offender Case Studies 90
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Executive Summary The Mental Health Diversion List (MHDL or the ‘List’) commenced operation as a pilot program in the Hobart registry of the Magistrates Court of Tasmania in 2007. An independent evaluation and review of the program was conducted in 2009.
Unlike some other Mental Health Courts and court diversion programs, the MHDL is not a separate or distinct court and is not subject to any unique legislation. Instead, it operates as a specialist list and uses the provisions under the Bail Act 1994 (Tas) and the Sentencing Act 1997 (Tas) to divert mentally ill participants away from the regular criminal justice system and into appropriate treatment.
The MHDL differs from other Tasmanian court diversion programs in that: • It is presided over by one of two dedicated magistrates twice a month; • It only operates in the Hobart registry; and • It operates without a distinct budget allocation and with no distinct human or extra resources.
To date, there have been 137 defendants referred to the MHDL. The majority of these referrals have been made either by lawyers (43.1%) or (Forensic) Mental Health Service officers (32.1%). Very few defendants have been referred to the List by ‘outside’ parties.
Of the 137 referrals, 112 defendants have been formally accepted onto the program. A total of 88 participants (64.2%) have successfully completed the program and 24 (17.5%) are still participating in the List. The remaining 25 defendants (18.3%) have been removed from the MHDL for a variety of reasons, including ineligibility (48%) and non-compliance (28%), and were referred back to the general list.
MHDL participants range in age from 19 years to over 70 years. 1 Schizophrenia is the most common mental health diagnosis for MHDL participants (44.6%), followed by bi-polar disorder (18.8%) and depression (8%). The broad range of ages and mental health diagnoses indicate that the List is serving its intended population appropriately.
1 To be eligible to participate in the MHDL, the defendant must be an adult (i.e. over 18 years old)
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Following the imposition of bail conditions by the MHDL, around 70% of participants received treatment from either Mental Health Services or Forensic Mental Health Services. Private psychiatrists, private psychologists and GPs accounted for 25% of the reported service providers.
A survey of health care and service providers from southern Tasmania was conducted. The survey found: • Most health care and service providers are aware of the MHDL but have limited understanding of its operation or functions; • Most believe that the MHDL is helping to improve the lives of participants and their families; • Most believe that the MHDL is helping to improve coordination between justice agencies and health service providers; and • The majority of health care and service providers believe that there are insufficient information resources available about the MHDL.
The survey also indicated that the MHDL is generally seen by care and service providers as a positive development that is providing participants with the opportunity to engage in treatment and avoid (inappropriate) incarceration.
The evaluation also considered the operation and management of the MHDL. It found that: • Pre-court meetings are an indispensable part of the successful operation of the MHDL and should be held before each sitting; • Changes to the original scheduling arrangements and an increase in the number of Lists per month (from one to two) has helped prevent overly long sittings while not affecting the workload of stakeholders; • Unlike other jurisdictions where the court liaison officers are employees of the court, the MHDL court liaison officers are employees of the Department of Health and Human Services. This allows them to have more influence in the health care and service sector and enables them to access better treatment services for MHDL participants and in a timelier manner; • Defence lawyers, especially those in private practice, need to be informed and/or trained about the objectives of the List, its operation and the role of all key players; and • The data collection process is uncoordinated, insufficient and unsustainable.
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One of the main objectives of the List is to address the mental health issues and needs of defendants and, in turn, reduce their offending behaviour. Although the available data was limited in terms of the number of subjects, the time frame of the comparison and the lack of separate comparison group, it produced some interesting results. Of the 52 MHDL participants who were finalised before November 2008 (i.e. six months before the evaluation was completed), 82.7% had committed an offence in the six months prior to their participation compared with just 7.7% in the six months post-participation. Furthermore, 78.8% of these participants had reduced their offending level post-participation (i.e. they recorded fewer incidents). Only 5.8% exhibited an increase in the number of offences they committed post-participation. Unfortunately, the small sample size also prevented the statistical significance of the data being calculated.
An identical analysis was conducted on the re-offending rates of 16 defendants who had been removed from the MHDL and referred back to the general list by November 2008. A higher percent of these participants (50%) committed offences in the six months after being removed from the MHDL.
An additional benefit of the List has been a reported decrease in the need for special hearings under s 15 of the Criminal Justice (Mental Impairment) Act 1999 , which are used to determine whether a defendant is fit to stand trial and be held criminally responsible for their acts or omissions. This means a reduction in the number of specialist reports that have to be ordered and a reduction in the time and cost associated with such hearings.
Overall the MHDL has been largely successful in achieving the following objectives and outcomes: • Offering a more therapeutic approach to the criminal justice system for mentally ill defendants; • Reducing the re-offending rates of participants; • Improving the coordination between the criminal justice agencies and health service providers; and • Reportedly saving valuable court resources and time with respect to the avoidance of special hearings under s 15 of the Criminal Justice (Mental Impairment) Act 1999 .
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Recommendations If it is decided that the MHDL should continue (either as a second phase pilot program or as a permanent function of the Magistrates Court), the recommendations about its operation and management are as follows: 1. That there be two MHDL per month and that these are held at set times (i.e. 2nd and 4 th Thursday afternoon of each month); 2. That pre-court MHDL meetings be formalised and held at set times (i.e. 1 st and 3 rd Thursday of each month) and be attended by all relevant parties; 3. That private and newly admitted lawyers are educated about the operation of the MHDL, the role of all key players and encouraged to refer eligible clients; 4. That sufficient paper-based and electronic information about the MHDL is made available for care and service providers and the general public (including up-dating the MHDL Procedure Manual and brochure). This may require the development of a communication strategy by the relevant Departments; 5. That, subject to the continuation of the MHDL, the data collection needs and processes be reconsidered in order to develop a more effective and robust data reporting system. Consideration will need to be given by both the Department of Justice and the Department of Health and Human Services as to how this is best managed and coordinated; 6. That the MHDL be recognised as a court diversion program based on therapeutic jurisprudence principles that can effectively coalesce and coordinate with the Government’s other court diversion programs; and 7. That synergies between the MHDL and other court diversion programs be explored in order to develop a unified problem solving justice policy for Tasmania.
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1 Introduction 1.1.1 The Magistrates Court of Tasmania’s Court Management Group commissioned an independent evaluation and review of the Mental Health Diversion List (MHDL or the ‘List’), which has been operating as a pilot program in the Hobart registry of the Magistrates Court since 24 th May 2007. This evaluation is funded, to a significant extent, by a Law Foundation of Tasmania grant.
1.1.2 The purpose of the evaluation and review is to produce a report which details the effectiveness of the MHDL, its policies and procedures and provide recommendations as to its future viability.
1.1.3 The MHDL deals with defendants whose offending is linked to their mental illness. It aims to provide such defendants with an opportunity to address their mental health issues through court mandated treatment programs or interventions. It is intended that this therapeutic approach to criminal justice will assist defendants in reducing their re-offending rates while addressing their mental health needs. In the first 24 months of operation, 137 defendants have participated in the MHDL. Of these, 88 have successfully completed the List, 24 are still participating in the List and 24 were referred back to the general list for a variety of reasons including non- compliance and ineligibility. One defendant died while on the MHDL. 2
Figure 1: Number of MHDL participants who have completed the program, been removed or are still participating in the List.
MHDL participants
24 successfully completed unsuccesful still participating
25
88
2 For the purposes of the report, this participant is classified as ‘unsuccessful’
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1.1.4 The report consists of: • a review of relevant literature relating to mental health and criminal justice issues generally, and mental health court evaluations in particular; • a quantitative analysis of the data available presently on the MHDL; • an examination of pre- and post-participation offending rates of defendants who participate in the MHDL; • an analysis of a survey sent to all relevant care and service providers; • a number of qualitative interviews with key stakeholders; and • case studies of nine participants. Due to time and ethical constraints, the report does not include any detailed or formal clinical information about participants.
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2 The Mental Health Diversion List 2.1 Background 2.1.1 The Mental Health Diversion List was established as a pilot program in 2007 as a response to the well-documented problems associated with dealing with defendants who suffer from mental illnesses in the general criminal justice system and court processes. 3 Research shows that the rates of major mental illnesses, such as schizophrenia and depression, are between three and five times higher in the offender population in Australia than the general community. 4 These studies also indicate that the management of mentally ill prisoners presents particular problems for prisons and criminal justice systems, and is often conducted in a manner which is not conducive to improving the offender’s mental health or stability. 5
2.1.2 The MHDL is also an attempt to incorporate a more therapeutic approach to criminal justice in a Magistrates Court setting. Like other problem solving courts, 6 it aims to address the reasons for the offending behaviour, rather than simply addressing and sanctioning the said behaviour.
2.1.3 The majority of mentally ill defendants typically offend in a nuisance-type manner such as; shoplifting, disorderly conduct or the commission of other minor public order offences. 7 They are often repeat offenders who are also prone to the offences of failing to appear before court. Due to these factors, they tend to come before the courts a disproportionate amount of times and their cases can take longer to resolve.
2.2 Operation 2.2.1 The MHDL does not operate as a separate or distinct court and is not subject to any special or unique legislation or practice directions. Rather, it has been established as a court diversion program which operates as a specialist list in the Magistrates Court and uses the existing extensive provisions under the Bail Act 1994
3 ‘Mental Health Courts: A Primer for Policy Makers’ (2008) Bureau of Justice Assistance (www.ojp.usdoj.gov/BJA/pdf/MHC_Primer.pdf ) 4 Ogloff J, Davis M, Rivers G and Ross S, ‘The Identification of Mental Disorders in the Criminal Justice System’ (March 2007) Australian Institute of Criminology (www.aic.gov.au/publications/tandi2/tandi334t.htm ) 5 ‘Australia’s Treatment of Prisoners and Prison Conditions’ Human Rights Law Resource Centre (www.hrlrc.org.au/files/FZEAUHUITS/Factsheet%20%20Prisoners ) 6 Such as the Court Mandated Drug Diversion Program 7 Senate Select Committee on Mental Health ‘A National Approach to Mental Health: From Crisis to Community (Final Report)’ (2006) (www.aph.gov.au/senate/committee/mentalhealth_ctte/report02/index.htm )
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(Tas) and the Sentencing Act 1997 (Tas) to formulate and impose treatment plans or conditions on participants. At present, the MHDL sits one Thursday a month and is presided over by one of two dedicated magistrates 8 (although there have been a couple of recent occasions where, due to increases in the number of matters on the List, it has sat twice a month). 9
2.2.2 While the MHDL is not a distinct Mental Health Court, it shares a number of similarities with such courts, including in its general operation and objectives. It is therefore appropriate to use information about Mental Health Courts for comparative purposes.
2.2.3 The target population of the MHDL is adult defendants (aged 18 years and over) whose offending behaviour is linked to their mental illness. 10 Defendants can be referred to the List at any time prior to finalisation of a matter by a number of different parties. These include: • their defence solicitor; • the prosecutor (or police); • the magistrate; • Forensic Mental Health Court Liaison Officer; • their case manager (or other care/service provider); or • any other person with a genuine interest in the defendant’s welfare, including the defendant. Referrals can be made orally but must include sufficient information to justify referral to the List based on the published eligibility criteria. 11
2.2.4 Once referred, the defendant is required to undertake a formal assessment conducted by a Forensic Mental Health Court Liaison Officer (FMHCLO). Only defendants who have a mental illness as defined in section 4 of the Mental Health
8 It should be noted that the two MHDL magistrates also preside over general lists 9 During the first year of operation there was only one dedicated magistrate. However, since mid 2008 this was increased to 2 magistrates in order to better deal with the greater demand for the List 10 The MHDL is available to any mentally ill adult charged with either a summary offence or a minor indictable offence (triable summarily). While the MHDL has a broad jurisdiction in relation to the type of matters it can hear, sex-related offences, Family Violence offences are excluded from the list. Driving offences which attracted a mandatory fine were also initially excluded however these matters are now being included more often 11 ‘Mental Health Diversion List Procedural Manual’ (April 2007) (www.magistratescourt.tas.gov.au/_data/assets/pdf_file/0008/78740/Mental_Health_Diversion_List_Pr ocedural _Manual_-_May_2008-_ver1.1.pdf )
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Act 1996 (Tas) 12 are permitted to continue to participate in the List. If the defendant is deemed not to meet the requisite criteria they are returned to the general list of the Magistrates Court. If the defendant is returned to the general list, they still retain the options of making an application that they are unfit to stand trial or pleading not guilty by reason of insanity, pursuant to the Criminal Justice (Mental Impairment) Act 1999 (Tas).
2.2.5 The defendant must also consent voluntarily to participate in the MHDL program and may revoke their consent at any point in the proceedings. If consent is revoked, or it is determined that the defendant does not to have the required capacity to consent, he/she is returned to the general list.
2.2.6 Once eligibility and suitability are confirmed, the defendant is formally accepted onto the List. The magistrate will usually adjourn the matter for one or two months and release the defendant on bail to reappear at a future date. The specific conditions of the defendant’s bail 13 can vary, but generally require the defendant to engage with, and obey the reasonable instructions of officers from Forensic Mental Health Services (FMHS) and/or Mental Health Service (MHS). During this bail period, a treatment plan is devised by the defendant, FMHS staff and any other relevant parties.
2.2.7 The FMHCLO will support and advise defendants while they are on the List and liaise with the relevant service providers. They will also meet with the prosecution and defence before each sitting of the List to discuss the progress of each participant and make recommendations as to their future participation. 14
2.2.8 The nature of the List and the underlying therapeutic jurisprudential premises that underpin its operation inherently require that regular repeat appearances and reviews occur. During these appearances, the magistrate will hear verbal reports from the FMHCLO as to the defendant’s compliance or otherwise with their treatment plan or conditions. The defence may also inform the court about their client’s progress and provide any additional reports they have received from private health
12 See Appendix 1 13 There is a list of eleven, pro forma bail conditions which the magistrate adapts to each particular case. See Appendix 3 14 For example, the FMHCLO may suggest that a defendant should be removed from the list because they are not engaging with treatment or not complying with their bail conditions. They will also make recommendations about whether particular matters should be finalised or not
12 Mental Health Diversion List Evaluation Report care/service providers. On average, a defendant will be required to make three appearances before their matter can be finalised (see table 11 at page 63).15 Some defendants, especially those who have engaged in private treatment before the commencement of their participation, will require fewer appearances. Others, such as those with complex mental health issues or those who are at risk of suffering from a relapse of symptoms, may be required to make more appearances.
2.2.9 When a matter is set to be finalised, the prosecution will read a summarised version of the facts to the court. Defendants who participate in the MHDL are generally required to plead guilty or give an indication that there is no contest to the facts in the charges; as a result the facts are very rarely disputed. Following the prosecution summary, the FMHCLO will present a final report to the court about the progress of the defendant and whether any on-going treatment provisions need to be incorporated into any final order. Finally, defence counsel will present their pleas of mitigation. On occasions and where appropriate, the defendant will also be given an opportunity to speak directly to the magistrate.
2.2.10 When finalising a matter, the magistrate will take into account a number of different factors including: • the defendant’s compliance or otherwise with the bail order conditions; • the defendant’s level of engagement with FMHS, MHS and/or other relevant care and health service providers; and • the defendant’s progress (in terms of their mental health issues) while on the MHDL. In delivering their sentence, the magistrate retains the full option of sentencing orders available under s7 of the Sentencing Act 1997 (Tas). 16 Generally, successful/compliant MHDL participants can expect a lesser sentence than they would have received if they had their case heard on a regular/ordinary court list. 17
15 Average number of appearances = 2.8, mode = 3 16 See Appendix 4 17 See note 11, however it should be recognised that some parts of this manual are currently out-dated and need to be revised
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MHDL Process Flowchart
D identified as having Mental Health issues
Found to be D assessed as suitable unsuitable / ineligible or & eligible and consents does not consent to participate in MHDL
1st Appearance on MHDL
Reports Ordered (full Bail Conditions / assessment possibly Treatment Plan set (no ordered) separate legislation used - just broad provisions of Bail Act ) Referred Back to General List Subsequent Court Appearances / Reviews
Persistent non- compliance, withdrawal of D’s progress reviewed. Written and Oral consent, or subsequent Issues of compliance reports provided to determination of or otherwise ad- court ineligibility dressed
Non-compliance = Compliance = praise verbal sanction from from Magistrate Magistrate
Necessary adjustments made to Bail / Treatment Plan
Final Appearance (Plea and Sentence)
Court hears facts - any Pleas in mitigation FMHCLO gives report disputes or variances from defence / final on treatment to Court raised and resolved submission from prosecution
Magistrate delivers sentence - takes into consideration all factors but retains all sentencing options available under Sentencing Act 1997
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2.3 Management of the MHDL 2.3.1 Unlike some other Tasmanian court diversion programs, such as the Court Mandated Diversion of Drug Offenders program (CMD),18 the integrated ‘Safe at Home’ (S@H) response to family violence 19 and the Police Diversion Program, 20 the MHDL operates without a distinct budget allocation and with no distinct human resources or extra resources. The MHDL also differs from the other diversion initiatives in that it only operates in the south of Tasmania and is only ever presided over by a dedicated magistrate.
2.3.2 A Project Team for the MHDL was established in order to resolve practical issues around the procedures and operation of the List and the provision of services related to the List. This Project Team comprise representatives from: • The Magistrates Court; • Police Prosecution Services; • Mental Health Court Liaison Officers; • Legal Aid Commission; and • Law Society Criminal Law Committee. It was initially envisaged that the Project Team would meet bi-monthly, however this frequency has not been consistently maintained, which is a concern to some representatives.
2.3.3 Approximately one year after the inception of the MHDL, the court established a Steering Committee. This committee consists of representatives from: • The Magistrates Court; • The Department of Justice; • Mental Health Services; • The University of Tasmania (Law Faculty); and • The Department of Police and Emergency Management.
18 Information about this diversion program is available on the Magistrates Court web page at (www.magistratescourt.tas.gov.au/divisions/criminal__and__general/court_mandated_diversion ). A copy of the CMD evaluation report is available at (www.justice.tas.gov.au/corporateinfo/projects/court_mandated_diversion ) 19 Information about the Safe at Home initiative is available at ( http://www.safeathome.tas.gov.au/ ) 20 The Police Diversion Program is a key feature of the Tasmanian Drug Strategy’s response to illicit drugs. It operates within the terms of the nationally sanctioned Illicit Drug Diversion Initiative framework. For further information see; Tasmanian Law Reform Institute ‘The Establishment of a Drug Court Pilot in Tasmania’ (December 2006) Research Paper No 2 p.30-34
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2.3.4 The terms of reference for the MHDL Steering Committee include: • Managing consultation on the development of the MHDL pilot; • Managing the evaluation of the pilot; • Considering mechanisms to enhance the collaboration of the justice and health systems; • Subject to the evaluation, considering mechanisms for extending the duration of the pilot or making the program a permanent feature of the justice system; and • Assessing best practice models/standards of the operation of the pilot. This present evaluation was overseen by the MHDL Steering Committee.
2.4 The Therapeutic Jurisprudence Approach 2.4.1 The MHDL aims to adopt a problem solving approach to the delivery of justice. As indicated above, it incorporates therapeutic jurisprudence concepts when dealing with offenders with mental illnesses.
2.4.2 Therapeutic jurisprudence is ‘…the study of the law as a therapeutic agent’. 21 It recognises that the way the law is implemented and operates can either have a negative, positive or neutral effect on the psychological wellbeing of participants. Therapeutic jurisprudence argues that anti-therapeutic consequences should be avoided wherever possible and promotes the idea that by assisting offenders to address the mental, behavioural or situational issues and problems which underlie the offending behaviour, a more comprehensive resolution can be reached. 22
2.4.3 A therapeutic jurisprudence approach involves significantly different principles than those involved in traditional/conventional litigation. Amongst other things, therapeutic jurisprudence involves a collaborative, largely non-adversarial, approach. It aims to be ‘forward-looking’ and is concerned with participants’ needs. 23
2.4.4 While not entirely analogous, the theory and practice of problem solving courts, including the MHDL, are strongly related to the concept of therapeutic jurisprudence. For example, the integration of treatment services with judicial case processing, on-going judicial intervention and supervision all reflect therapeutic
21 Wexler D, ‘Therapeutic Jurisprudence: An Overview’ (1999) ( www.therapeuticjurisprudence.org ) 22 King M, ‘Therapeutic Jurisprudence in Australia: New Directions in Courts, Legal Practice, Research and Legal Education’ (2006) 15 JJA 129-141: 130 23 Note 23 at 134
16 Mental Health Diversion List Evaluation Report jurisprudence principles. 24 According to Freiberg, 25 problem solving (or problem oriented courts) ‘…represent a move away from a focus on individuals and their criminal conduct to offenders’ problems and their solutions. Their attempt to deal with the problems which may contribute to an offender’s criminal behaviour reflects a realisation by courts and legislators that social problems may require social, rather than legal, solutions.’
2.4.5 Despite being relatively recent developments, therapeutic jurisprudence and problem solving courts are becoming more common in Australia and internationally. 26 However, there is little uniformity in how the principles and concepts are implemented within Australia and even within the Tasmanian jurisdiction.
2.4.6 Below is a brief description of the mental health courts and diversion programs that operate in other Australian jurisdictions.
South Australia 2.4.7 The approach taken by the Hobart MHDL is very similar to that of the Magistrates Court Diversion Program (MCDP) in South Australia, which was the first mental health diversion program established in Australia in 1999. Like the Tasmanian approach, the South Australian Diversion Program is a collaborative one which is not based on specific legislation but rather relies on the bail and sentencing powers under existing legislation to get eligible offenders onto a plan with access to treatment and support services while their case is adjourned. 27
2.4.8 While the two diversion programs share many similarities, there are a few notable administrative differences. Firstly, when the South Australian Diversion List sits in Adelaide, it is divided into three distinct time slots. New acceptances on to the List are heard at 10am, review of current participants are heard are 11:30am and
24 Freiberg A, ‘Therapeutic Jurisprudence in Australia: Paradigm Shift or Pragmatic Incrementalism?’ (2003) 20 Law in Context 6-23: 11 25 Freiberg A, ‘Problem-oriented Courts: Innovative Solutions to Intractable Problems?’ (July 2001) AIJA Magistrates Conference ( www.aija.org.au/mag01/Freiberg.pdf ) 26 Note 23 at 139. In the United States of America there are around 180 Mental Health Courts/Diversion Programs in operation to date, see ‘Outcomes from the Last Frontier: An Evaluation of the Palmer Coordinated Resource Project’ Hornby Zeller Associates Inc. 2008 27 Richardson E, ‘Mental Health Courts and Diversion Programs for Mentally Ill Offenders: The Australian Context’ (July 2008) Rethinking Mental Health Law s (Paper presented at 8 th Annual IAFMHS Conference, Vienna, Austria) 1-23: 4
17 Mental Health Diversion List Evaluation Report matters for finalisation are heard at 2:15pm. 28 In the MHDL, all matters are heard concurrently (although finalisations are usually left until the end of the session). As the number of participants on the Tasmania List continues to grow, this can result in very long sessions.
2.4.9 Another notable difference is that the Tasmanian List requires participant’s with an intellectual disability or an acquired brain injury to have a concurrent diagnosis of mental illness before they are eligible for the List. In South Australia, a dual diagnosis is not required for intellectually disabled defendants or defendants with an acquired brain injury.
Victoria 2.4.10 Unlike Tasmania and South Australia, Victoria has not developed a separate diversion program for offenders with mental health issues. 29 Instead the Magistrates Court of Victoria utilises the skills and services of the Mental Health Court Liaison Services to assess mentally ill offenders, offer advice to the court about their situation and refer them to appropriate treatment (whether in the community or prison system). These Mental Health Court Liaison Services do not, however, have any kind of ongoing supervision over the defendants. 30
2.4.11 In Victoria, persons defined as having ‘special circumstances’ (including physical or intellectual disability, mental illness, drug or alcohol dependency or homelessness) can apply to have an unpaid infringement notice revoked. 31 This ‘Special Circumstances List’ aims to avoid imprisoning socially or economically disadvantaged offenders for failure to pay their fines. 32 While it does incorporate some therapeutic jurisprudence concepts and adopts a problem solving approach, it is not a specialist mental health court.
28 Note 28 at 7 29 It should be noted, however, that Victoria is in the process of implementing a separate Mental Health list in the Victorian Magistrates Court (the project has recently been allocated $13.8 million by the Victorian Government in the 2009/2010 budget, see www.budget.vic.gov.au for details) 30 Note 28 at 11 31 They may also be released with their case adjourned (with or without a conviction recorded) and required to enter into some form of good behaviour bond or comply with treatment conditions 32 Walsh T, ‘The Queensland Special Circumstances Court’ (2007) JJA 223-234: 225-226
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New South Wales 2.4.12 In New South Wales, there are specific legislative powers under ss 32 and 33 of the Mental Health (Criminal Procedure) Act 1990 (NSW) to divert mentally ill and intellectually disabled offenders away from the criminal justice system. 33 Section 33 provides that magistrates have the power to order that mentally ill persons be taken to a mental health facility for assessment and then detained or discharged (either conditionally or unconditionally) into the care of a responsible person. 34
2.4.13 The operation of ss 32 and 33 does not require the defendant to be referred to a specific or separate list, thus any magistrate sitting on any day has the ability to make such an order.
Queensland 2.4.14 In Queensland, a separate Mental Health Court has been established to specifically determine issues relating to defendants’ capacity/fitness to plead or to be tried and held criminally responsible for their alleged offending behaviour. 35 The Mental Health Court also hears appeals from decisions from the Mental Health Review Tribunal. 36
2.4.15 The main focus of the Mental Health Court is to examine the relationship between the offender’s mental illness and their alleged criminal behaviour. 37 The court can then make a determination about: • the offender’s mental fitness; • whether a forensic order should be made and the offender detained for treatment/care; • whether a ‘no contact’ order should be made; or • whether the case should be returned to a criminal court and tried in the usual way. 38
2.4.16 Like Victoria, the Brisbane Magistrates Court has also introduced a ‘Special Circumstances List’. It is available for defendants who have committed a minor public
33 Note 28 at 16; see also Gotsis T and Donnelly H, ‘Diverting Mentally Disordered Offenders in the NSW Local Court’ (March 2008) Judicial Commission of New South Wales 34 Note 28 at 16 35 Note 28 at 14 36 ‘Queensland’s Court System: Fact Sheet’ (2005) p.2 ( www.courts.qld.gov.au/Factsheets/D-FS- District_Court.pdf ) 37 Note 37 at 2 38 Note 37 at 2-3
19 Mental Health Diversion List Evaluation Report order offence and who have either a mental illness or an intellectual disability and are homeless. Defendants on the Special Circumstances List may be released absolutely or given an order that requires them to be of good behaviour for a set period of time. The Brisbane list aims to deal with the ‘…impaired capacity of disadvantaged people to comply with public order legislation by initially disposing of their case in a more appropriate and constructive manner.’ 39
2.4.17 Again, like Victoria, the Queensland Special Circumstances List is not a specialist mental health court and does not require participants to engage in specific treatment programs.
2.5 National Developments 2.5.1 In March 2008, the National Justice CEOs Group endorsed a project entitled the National Justice Mental Health Initiative. 40 The project established a cross- jurisdictional working group to improve identification, treatment and coordination of services to people with mental disorders who have contact with the criminal justice system. The first phase of the project was to conduct an audit of recent justice mental health research and reports. This was completed in March 2009. 41
2.5.2 The National Justice Mental Health Initiative is also concerned with the development of best practice guidelines in the area of diversion and support of mental health clients in the criminal justice system. This stage of the project is intended to deliver three elements: • a handbook of best practice elements that can be consistently applied to all diversion and support initiatives; • a compendium of case studies of diversion and support programs that operate at the various stages of the criminal justice system; and • guidelines around diversion and support strategies that engage young people, Indigenous people (Aboriginal and Torres Strait Islanders) and people from Culturally and Linguistically Diverse (CALD) backgrounds.
39 Note 33 at 225-226 40 The National Justice CEOs (NJCEOs) Group is an inter-jurisdictional committee comprising Secretaries of the Department of Justice (or equivalent) in each state and territory, as well as the Secretary of the Commonwealth Attorney-General’s Department and the Secretary of the New Zealand Ministry of Justice. The NJCEOs Group aims to work collaboratively on issues of national and cross– jurisdictional importance. 41 This audit is available at www.auseinet.com/jmh_audit/
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A senior project officer, who will be responsible for the development of this stage of the project, has been appointed recently.
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3 Evaluation 3.1 Methodology 3.1.1 This section of the report considers the ethical issues related to such projects, as well as the benefits and disadvantages of particular research methodologies. It will also provide a summary of the quantitative and qualitative data collection tools and processes used during the evaluation.
3.1.2 There was considerable discussion between the evaluators and other parties 42 about which research methodology would best enable the relevant factors of the project logic model (see section 3.2 below) to be addressed. The final methodology employed by the evaluation was influenced by a number of factors, including the type of data available as well as time and budget constraints.
3.1.3 In most circumstances, the optimum way of identifying the impact of an intervention program is to use a comparison study where offenders are randomly assigned the right to participate in the intervention program or not. 43 However, this kind of methodology, where people are denied the opportunity or right to participate in and access treatment is highly unethical. It would also need to have been considered and implemented at the conception of the MHDL in May 2007.
3.1.4 A second approach is to compare the MHDL participant group with a similar group of offenders who are being processed through the conventional court system (e.g. offenders from the north of Tasmania) and who share similar characteristics as the MHDL participants (including age, sex, diagnosis and offending behaviour and history). It was initially envisaged that this evaluation might adopt this kind of methodology. However, it was decided that finding a comparison group that was not only adequate in terms of numbers but also shared sufficiently similar characteristics to MHDL offenders would be too difficult and time consuming.
3.1.5 It was also determined that because information about the mental health of offenders in Northern Tasmania is held by the Department of Health and Human Services (DHHS) and not the Department of Justice or the courts, there would be ethical and practical considerations which would restrict access to this information. After some consultation with the Human Research Ethics Committee at the
42 Including University of Tasmania staff and Human Research Ethics Committee members 43 Skrzypiec G, Wundersitz J and McRostie H, ‘Magistrates Court Diversion Program: An Analysis of Post-Program Offending’ (2004) Office of Crime and Statistics Research ( www.oscar.sa.gov.au )
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University of Tasmania, it was found that gaining the requisite ethics approval for this kind of study would also be too time consuming and not necessarily guaranteed.
3.1.6 Instead, it was decided that the most appropriate methodology to use would be a comparison of pre- and post-participation offending rates and behavioural patterns of MHDL participants who had successfully completed the program by November 2008. This method was relatively less intrusive for MHDL participants and did not require special ethical approval as no restricted or protected information was being accessed. However, it needs to be acknowledged that this approach does suffer from some methodological flaws, such as not including a comparison group and not having sufficient follow-up time, 44 and therefore the conclusions that can be drawn from this approach are limited. While a reduction in re-offending rates/frequency may indicate success of the List, there is no way to definitively ‘prove’ a causative link between this reduction and the MHDL initiative.
3.1.7 It was decided that a final methodology that included both quantitative and qualitative data collection methods would need to be employed. Using both these forms of data permitted a more thorough process and outcome evaluation to be conducted.
3.2 Project Logic Model 3.2.1 To guide the collection of data and consideration of the issues, a project logic model of the MHDL was developed.
3.2.2 A project logic model is a systematic and visual way to present an understanding of the relationship between the resources available to operate the program, the planned activities of the program and the changes or results that are hoped or intended to be achieved. 45
3.2.3 The following project logic model is representative of the MHDL.
44 Roberts L and Indermaur D, ‘Key Challenges in Evaluating Therapeutic Jurisprudence Initiatives’ (2007) JJA 60-69: 61 45 W.K. Kellogg Foundation ‘Logic Model Development Guide’ (2004) ( www.wkkf.org ) p.1
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Resources/ Activities Outputs Short-term Medium-term Long-term Impact Inputs Outcomes Outcomes Outcomes
• Medical • Offenders • Mental state • Offenders manage • Lowered rates of • Fewer court Treatment participate in stabilised and control their offending appearances Offender appropriate mental health • Psychological • Relapse • Less negative mental health problems Treatment prevented or contact with treatment options delayed police and • Counselling • Offenders have criminal justice • Offenders • Housing opportunity to system address address other situational needs criminogenic and treatment needs
• Assessment • Service delivery • Services work • Services are • Integrated • Service
Service coordinated together coordinated service delivery integration • Case Providers effectively results in less Management • Services • Services effectively • High quality pressure on understand best • Services achieve address needs of service system • Treatment services practice best practice clients • Better use of resources
• FMHCLO • Courts effec- • Courts have • Courts act as a key • Courts adopt • Fewer tively access more options catalyst in problem solving presentations of Courts • Prosecution best available available to them supporting and approach to (repeat) • Defence support services to respond more directing offenders other systemic offenders with for appropriate appropriately to into appropriate issues mental health • Magistrates offenders offenders with treatment problems mental health • TJ / Problem problems Solving Approaches
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3.3 Quantitative Data 3.3.1 Quantitative data is that which can be expressed numerically. It is generally presented in the form of numbers and statistics. Its analysis is considered more objective and efficient than qualitative data, however purely using quantitative data can lead to the contextual details of the project being missed.
3.3.2 For the Mental Health Diversion List evaluation, the following quantitative data was collected: • intake data for all offenders referred to the MHDL (irrespective of suitability or eligibility), including sex, age, number and type of offences, who they were referred by and who they are represented by; • limited clinical assessment data for all offenders accepted on to the MHDL, including diagnosis and service providers; • appearance data for all offenders accepted on to the MHDL, including number of appearances, number of non-appearances and total number of days on the List; and • re-offending data.
3.3.3 This information was collected from a number of sources including: • court records; • records provided by the Forensic Mental Health Court Liaison Officers; and • records provided by Tasmania Police
3.3.4 Survey data methods were also used to gauge the extent of knowledge of (southern Tasmanian) mental health care and service providers (see section 5 below).
3.4 Qualitative Data 3.4.1 Qualitative data is generally considered to be ‘richer’ than quantitative data but because of its subjective nature, it is only relevant to the select population and is not able to be generalised. It involves the analysis of words and behavioural observations taken from (unstructured) interviews.
3.4.2 For the MHDL evaluation, interviews were held with: • the two dedicated MHDL magistrates; • the relevant court clerks;
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• the Forensic Mental Health Court Liaison Officers; • Legal Aid and other defence lawyers; • Police prosecution services; and • a number of past and present MHDL participants (and family members or case managers in some instances).
3.4.3 All interviews, except one MHDL participant interview, 46 were conducted face- to-face, tape-recorded and later transcribed.
46 This was conducted over the telephone at the request of the participant 26
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4 Literature Review 4.1.1 As part of the evaluation, a comprehensive literature review was undertaken. This included a review of the relevant literature relating to: • Mental Health Problems and Illnesses; • Key Conceptual Issues; o Therapeutic Jurisprudence and Problem Solving Courts; o Criminogenic Needs of Participants; o Diversion Programs; and • Evaluations of other Mental Health Courts and Diversion Programs.
4.1 Mental Health
Mental Health Problems and Illnesses 4.1.2 Mental Health problems and illnesses affect the perceptions, emotions and behaviour of individuals. 47 There are numerous types of mental illnesses, which can be separated into two main categories; psychotic and non-psychotic illnesses.
4.1.3 Psychotic illnesses affect the brain and result in changes to one’s thinking, emotions and behaviour. Someone experiencing an acute stage of a psychotic illness may lose touch with reality as their ability to make sense of thoughts, feelings and external information is seriously affected. 48 They may experience delusions and/or hallucinations. Psychotic illnesses include schizophrenia and some forms of depression (namely bi-polar disorder). 49
4.1.4 Non-psychotic illnesses include phobias, anxiety, some forms of depression, eating disorders and obsessive compulsive disorder (OCD). Symptoms of non- psychotic illnesses include strong feelings of depression, sadness, tension or fear. These can cause great distress to the person experiencing them and can be so overwhelming or distressing that they prevent the person from coping with normal day-to-day activities. 50
47 Australian Institute of Health and Welfare ‘Australia’s Health 2008’ (www.aihw.gov.au/publications/aus/ah08/ah08-c05.pdf ) 48 Department of Health and Human Services, ‘About Mental Illness’ (www.dhhs.tas.gov.au/health_and_wellbeing/mental_health/related_topics/about_mental_illness ) 49 Note 48 50 Note 48
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Prevalence of Mental Illnesses 4.1.5 People’s experiences of mental illnesses differ significantly. Some people may experience a single episode of a mental illness and recover fully. For others, it may recur throughout their entire life. 51 It has been estimated that one in five Australians will experience a mental illness or mental health difficulty at some time in their life. Overall, approximately 18% of Australian adults have experienced a mental health problem in the preceding 12 months. 52 These statistics are equally applicable to Tasmania’s population. 53
4.1.6 Depression and anxiety are the biggest mental health issues in Australia, with an estimated one million Australians living with depression each year. 54 Schizophrenia and bi-polar disorder affect approximately 1% and 2% of the population respectively. 55
4.1.7 Mental illness was estimated to be responsible for 13% of the total burden of disease 56 in Australia in 2003, placing it third as a broad disease group behind cancers and cardiovascular disease. 57 Almost all of the mental illness burden was due to disability rather than mortality. In the case of depression, it has been estimated it will be the second largest contributor to the world’s disease burden by 2020. 58
Mental Health Problems and Offenders 4.1.8 As mentioned above (at 2.1.1 ), the rates of major mental illnesses, such as schizophrenia and depression, are between three and five times higher in the offender population than in the general community. 59
4.1.9 According to a recent study, 60 13.5% of male prisoners and 20% of female prisoners had reported having prior psychiatric admission(s). Furthermore, 8% of
51 Note 48 52 Note 48; see also note 47 53 Note 48 54 Raabus C, ‘Mental Health Week’ (October 2007) ( www.abc.net.au/tasmania/stories/s2053465.htm ) 55 Better Health Channel, ‘Mental Illness Prevalence’ (www.betterhealth.vic.gov.au/BHCV2/BHCARTICLES.NSF/pages/Mental_illness_prevalence?OpenD ocument ) 56 Burden of Disease is defined as the impact of a health problem in an area measured by financial cost, mortality, morbidity or other indicators 57 Note 47 58 National Health and Medical Research Council ‘Mental Health’ (2008) (www.nhmrc.gov.au/your_health/facts/mental.htm ) 59 Note 4 28
Mental Health Diversion List Evaluation Report male and 14% of females in Australian prisons have a major mental disorder with psychotic features. There is no indication that these findings cannot be extended to Tasmanian offenders and prison population.
4.2 Key Conceptual Issues
Therapeutic Jurisprudence and Problem Solving Courts 4.2.1 The basic conceptual and theoretical definitions of both therapeutic jurisprudence and problem solving courts have been referred to above (at 2.4.1 – 2.4.5). In summary, a therapeutic jurisprudence approach differs from conventional adjudication in the following ways: 61 • it favours a collaborative, rather than purely adversarial approach; • it aims to be people-orientated, not case -orientated; • it is more focused on needs rather than rights; • it is common-sensical rather than legalistic; and • it is forward-looking and planning-based rather than relying on precedents.
4.2.2 In this section, a more detailed consideration will be given to the role of each particular actor in problem solving courts and therapeutic jurisprudential judicial systems.
Magistrates/Judges 4.2.3 Studies and reports have shown that how a magistrate or judge behaves at a hearing can affect whether an offender complies with the particular order handed down. 62 Wexler argues that the level of language the magistrate uses and the amount of direct dialogue they chose to engage in with the offender can have a direct impact on the offender’s understanding of, and compliance with, any order made against them.
4.2.4 Open and inclusive communication is one of the key principles in a problem solving court system. Speaking in simple terms, including the offender in discussions about their case and ensuring the comfort of all parties are some of the simple, yet
60 Note 4 61 Note 23 at 134 62 Note 22
29 Mental Health Diversion List Evaluation Report essential, therapeutic jurisprudence approaches that ought to be adopted by magistrates in problem solving courts. 63
4.2.5 Other reports highlight the need for the magistrate, as well as prosecution and defence lawyers, to be able to listen to, and understand, the offender’s view of the world. The magistrate may also need to make direct enquiries of the offender’s personal circumstances. 64 This will allow them to understand and/or have an appreciation of the (subjective) motivation and actions of the offender. 65
4.2.6 It is also seen as preferable to have the same magistrate throughout the operation of the bail order, that is, ensuring that the same dedicated magistrate conducts the reviews and finalises the case. Having a ‘…rapid succession of reluctant and unsympathetic judges or magistrates…’ is particularly counter- productive and detrimental for the participants in a therapeutic problem solving court. 66
4.2.7 Sanctioning or rewarding particular behaviour is another important part of the therapeutic jurisprudence approach to particular offenders. Magistrates (and other officers of the court) need to be aware that paying too much attention to non- compliant offenders may reinforce or encourage such behaviour, while ignoring or paying too little attention to cooperative behaviour may discourage the kind of positive behaviour they seek from offenders. 67
4.2.8 The importance of on-going judicial supervision and encouragement was highlighted in Tasmania’s Court Mandated Drug Diversion Program Evaluation Report. 68 Participants in the CMD initiative respond strongly to the encouragement and personal attention they received from the magistrates. Not wanting to ‘let the magistrates down’ is a strong motivation for complying with their orders and ‘making the most of the opportunities’ presented to them by the CMD program.
63 Popvic J, ‘Judicial Officers: Complementing Conventional Law and Changing the Culture of the Judiciary’ (2003) 20 Law in Context 121-136: 129 64 Note 63 at 129 65 Note 25 at 16 66 Note 25 at 12-19 67 Allan A, ‘The Past, Present and Future of Mental Health Law: A Therapeutic Jurisprudence Analysis’ (2003) 20 Law in Context 24-53: 35 68 ‘Tasmania’s Court Mandated Drug Diversion Program: Evaluation Report’ (November 2008) (www.justice.tas.gov.au/corporateinfo/projects/court_mandated_diversion ) 30
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Lawyers 4.2.9 Like magistrates, a lawyer operating in a therapeutic jurisprudence context needs to see their client’s case in more than simply adversarial terms. 69 Lawyers need to understand and appreciate the client’s issues and problems and the potential (therapeutic) solution to these.
4.2.10 In general, proceedings in courts governed by the principles of therapeutic jurisprudence are non-adversarial, therefore any factual or legal disputes should be disposed of prior to the participant being referred to the program. If this is achieved, it will mean that all members of the court, including the prosecution and defence, can focus on the same agenda, namely achieving the most therapeutic outcome for each participant. 70
4.2.11 In achieving this goal, it may sometimes be necessary for the lawyers to work closely with a number of mental health professionals (e.g. Forensic Mental Health Court Liaison Officers). 71 This enables practitioners to be aware of the issues surrounding the treatment and care of the defendant without the need to order (external) reports. This, in turn, reduces the time and cost involved in the proceedings.
Offender 4.2.12 The offender has an important role in any therapeutic jurisprudence approach to court proceedings. For a problem solving court to be successful, it is essential that each offender understand their role, and that of every other key player in the process. In a problem solving court, the offender often has an active, not passive, role and it is important they appreciate that how they behave while participating in the diversion program will have particular consequences.
4.2.13 It is imperative that every participant in a problem solving court has been fully informed of the process and has freely consented to take part in the process. People who are coerced or forced into treatment may resent such intrusion and be less likely to want to resolve the underlying issues (such as addressing their mental health problems or substance abuse issues) which relate to their offending behaviour. 72
69 Note 23 at 136 70 Note 63 at 128 71 Note 22 at 137 72 Note 23 at 131
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4.2.14 Therapeutic jurisprudence emphasises the importance of self-determination in relation to addressing such problems. The principle of self-determination can be promoted within the curial context in a number of ways: • giving an offender the (coercion-free) option of participating in a diversion program; • encouraging the participant to contribute to the setting of goals and treatment strategies; and • allowing the participant the opportunity to report on their own progress. 73
4.2.15 Some research indicates that participants in problem solving courts are more compliant with the orders they receive, and benefit more from the whole process, if they are encouraged to view the process as entering into a kind of ‘social contract’ which they have made a (public) commitment to comply with. 74 Their level of compliance can be heightened by the fact that the contract is made with someone in authority (i.e. a magistrate) who is above and beyond those who they normally make such ‘contracts’ with (i.e. a health care provider). 75
Criminogenic Needs of Participants 4.2.16 Criminogenic needs are defined as the dynamic factors that directly influence an offender’s criminal behaviour, values and attitude. These factors or needs can be addressed, and thus changed or altered, through intervention programs. This in turn reduces the recidivism rates of offenders. 76 Examples of criminogenic needs include: • Employment factors – the ability to gain and retain employment; • Substance abuse history and issues; • Marital and Familial relationships; • Social interaction – the capacity to socialise and who they socialise with; • Community Functioning – including the ability to secure stable housing, manage finances and maintain hygiene; and • Personal/emotional functioning – including any cognitive or behavioural problems and non-severe/treatable mental health problems.
73 Note 23 at 131 74 Note 22 75 Note 22 76 Ohio Department of Rehabilitation and Correction ‘Criminogenic Needs’ (2006) (www.drc.state.oh.us/web/ipp_criminogenic.htm ); see also Day A and Howells K, ‘Psychological Treatments for Rehabilitating Offenders: Evidence-based Practice Comes of Age’ (2002) Australian Psychologist 39-47: 39 32
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4.2.17 Defendants may also have a number of non-criminogenic needs. These needs may also be dynamic, however changes in them will not reduce criminality. Examples include self-esteem, literacy and numeracy and emotional or personal problems that are not related to criminal activity.
4.2.18 In a criminal justice context, criminogenic needs can either be addressed through court diversion programs (such as the Mental Health Diversion List) or through rehabilitative or psychological treatment programs offered to offenders who are serving prison or community-based sentences. Effective intervention programs need to identify which criminogenic needs are related to a particular offender’s criminal behaviour and ensure that these are addressed directly in order to reduce and/or prevent recidivism. A program also needs to include strategies and activities that are personally meaningful to the offender which are delivered in a manner that makes sense to them. 77 Including the offender in the development and formulation of their bail conditions in the MHDL is one way of achieving this. Providing participants with the opportunity to enter treatment and address their mental health needs, as well as assisting or encouraging them to engage with a variety of social services (including housing, disability services, and drug and alcohol services) is a means of targeting their dynamic criminogenic needs.
Diversion Programs 4.2.19 In its purest form, the term diversion program refers to a program or process that diverts an offender away from the conventional criminal justice system at the pre-apprehension stage. 78 This form of diversion program aims to eliminate, not just minimise, contact with the formal criminal justice system.
4.2.20 In recent years however, the definition and application of the term has expanded and it is now used to refer to any alternative processing option which can occur at any stage of the criminal justice system. 79 It is this broader definition of a
77 Day A, Howells K and Rickwood D, ‘Current Trends in the Rehabilitation of Juvenile Offenders’ (2004) Trends and Issues in Crime and Criminal Justice , Australian Institute of Criminology (www.aic.gov.au ) 78 Wundersitz J, ‘Criminal Justice Responses to Drug and Drug-related Offending: Are They Working?’ (2007) Australian Institute of Criminology p.31 79 Note 78 at 32
33 Mental Health Diversion List Evaluation Report diversion program that applies to the MHDL, as an application for referral to the List can be made at any time prior to the finalisation of a matter. 80
4.2.21 The structure of the program and the requirement for regular reviews mean that a successful referral to the MHDL may actually increase, rather than minimise, the number of contacts a participant has with the criminal justice system. By agreeing to participate in the MHDL, defendants have generally accepted a much higher level of involvement with the criminal justice system. In some circumstances this will include greater intrusion into their personal lives than they would have experienced if their matters had been dealt with in an ‘ordinary’ manner.
Recidivism 4.2.22 According to some researchers, 81 it is inherently difficult, and unrealistic, to develop (and apply) a single definition of recidivism, as the term is constantly being re-defined as new and innovative attempts are undertaken to understand re- offending behaviour. Recidivism is generally seen as synonymous with terms such as repeat offending and re-offending. 82 For the purposes of this evaluation it can be defined as the reversion of an individual to criminal behaviour after he/she has been convicted of a prior offence and sentenced. 83 It is often used as a measure of the success or otherwise of criminal justice sentencing or correctional programs.
4.2.23 A major benefit of using recidivism data as a measure of the List’s success is that it provides a relatively high level of certainty and reliability with respect to at least one of the outcomes for participants in the List and enables an outcomes comparison for similarly matched offenders. It is also less expensive (in terms of both money and time) to collect and analyse.
4.2.24 While it does provide some valuable information about the effectiveness of correctional and/or intervention programs, there are a number of flaws and assumptions that need to be acknowledge when using recidivism data: • It only measures the failure, and not the success of participants; 84
80 Note 11 81 See Payne J, ‘Recidivism in Australia: Findings and Future Research’ (2007) Australian Institute of Criminology ( www.aic.gov.au/publications/rpp/80/rpp80.pdf ) p.iii 82 Note 81 at iv 83 Maltz M, ‘Recidivism’ ([1984]2001) originally published for Academic Press Inc. Florida (www.uic.edu/depts/lib/forr/pdf/crimjust/recidivism.pdf ) 84 Note 83 34
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• When using recidivism, and arguing that an offender had a problem that was causing or effecting particular behaviour, it is assumed that the clinical diagnoses are correct. This may require extensive psychological testing; 85 and • While it is valuable for evaluating goals related directly to offenders’ criminal behaviour, recidivism data does not provide any information in relation to any other goal of criminal sanctions.
4.3 Evaluations of other Mental Health Courts & Diversion Programs 4.3.1 As outlined above (at 2.4.7 to 2.4.17 ), a number of Australian states have developed some form of mental health court or diversion program. The structure and operation of these courts and programs differ greatly and therefore measuring and comparing their success rates is somewhat difficult. Below is a brief summary of a number of national and international mental health diversion programs evaluations.
Australian Mental Health Courts
South Australia 4.3.2 In 2004, the South Australian Government Office of Crime Statistics and Research published an evaluation of the South Australian Magistrates Court Diversion Program (MCDP). 86 The evaluation compared offending rates 87 12 months pre-program and 12 months post-program for all 157 participants who had successfully completed the program by a set date. 88
4.3.3 The report found, inter alia, that: • there was an overall reduction in the number of participants who offended post-program; • there was a reduction in the actual number of incidents charged against the entire group (from 348 to 116); • 66.2% of participants did not offend at all during the post-program period (compared to only 7% pre-program);
85 Note 83 86 Note 43 87 The report used the South Australian Police apprehension database to determine the number of offences committed and counted each criminal charge separately (even where more than one charge arose out of a single incident/course of conduct) 88 All participants included in the report were required to have completed the program 12 months before the study commenced
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• 76.4% of participants either became non-offenders or were charged with a smaller number of incidents post-program (10.8% recorded more incidents); The results also indicated that: • participants with a high probability of offending post-program were more likely to have offended during the program or have a record of five or more previous convictions at the time of program entry; • these participants were also likely to have a current substance abuse disorder/dependency, have physical health problems and a dual mental impairment diagnosis; • housing and accommodation problems were also related to a high probability of re-offending.
New South Wales 4.3.4 The Judicial Commission of New South Wales prepared a report into the operation of s32 of the Mental Health (Criminal Procedure) Act 1990 (NSW). 89 Section 32 allows magistrates to divert offenders from the criminal justice system and dismiss their charges either conditionally or unconditionally (see paragraph 2.4.12 above). A survey was sent to all Local Court magistrates in order to elicit their opinions of the program. A total of 33 magistrates (26%) responded.
4.3.5 The report made the following key findings: • the number of s 32(3) orders made is small – between 2004-2006, a total of 678 411 criminal matters were finalised in NSW local courts. However, only 2711 persons were diverted from the criminal justice system by a s32 order over this same period; 90 • the compliance provision (s32(3A)) is used extremely rarely by magistrates – largely due to the fact that magistrates are seldom informed of breaches; and • 70% of magistrates believed that 6 months is an inadequate period to enforce conditional orders under s 32(3). The report also found that: • Intellectual Disability Rights Service is concerned that s32 is not being used frequently enough for defendants with intellectual disabilities;
89 Gotsis T and Donnelly H, ‘Diverting Mentally Disordered Offenders in the NSW Local Court’ (2008) Judicial Commission of New South Wales ( www.judcom.nsw.gov.au/publications/research- monographs-1/monograph31/monograph31.pdf ) 90 This equates to approximately 0.4% of all criminal matters finalised 36
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• policy objectives behind s32 are being undermined by a lack of community mental health care services and other resources; and • attempts to evaluate s32 are hampered by a lack of data on treatment progress. 91
Queensland and Victoria 4.3.6 While there is some literature which details the operation of the ‘Special Circumstances Lists’ in both Queensland and Victoria, there is, to date, no data or literature which indicates the success/effectiveness or otherwise of these programs in either of these jurisdictions.
91 Note 89
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International Mental Health Courts
4.3.7 In the United States of America there are approximately 180 Mental Health Courts and Diversion Programs in operation currently.92 Below is a summary of some of the programs that operate in the USA and the key findings of the evaluations that have been conducted.
Mental Health Key Findings Court / Diversion Program Santa Barbara • Participants demonstrated significant improvements in global County Mental functioning and quality of life Health Treatment • There were reductions in relation to psychological distress and drug 93 Court and alcohol problems • 10% of participants were imprisoned while on the program
San Francisco • Evaluation involved the study of 170 individual participants within at Mental Health least a 6 month follow-up period (comparison group of offenders Court 94 who received no treatment was used) • Participation in Mental Health Court programs was associated with longer time without any new criminal charges • Successful completion of Mental Health Court program was associated with the maintenance of reduction in recidivism
Pittsburgh Mental • Accepts defendants charged with felonies and misdemeanours (not Health Court 95 including sex offences or violent crimes) • Defendants are given probation and put on treatment plans • 18% of graduates have been re-arrested, compared with a national average of 68% for all defendants
92 ‘Outcomes from the Last Frontier: An Evaluation of the Palmer Coordinated Resource Project’ (2008) Hornby Zeller Associates Inc. 93 Cosden M, Ellens J, Schnell J and Yamini-Diouf Y, ‘Evaluation of Santa Barbara County Mental Health Treatment Court with Intensive Case Management’ (2004) (http://consensusproject.org/downloads/exec.summary.santa.barbara.evaluation ) 94 McNiel D and Binder R, ‘Effectiveness of a Mental Health Court in Reducing Criminal Recidivism and Violence’ (2007) American Journal of Psychiatry 1395-1403 95 Schwartz E, ‘Mental Health Courts: How Special Courts can Serve Justice and Help Mentally Ill Offenders’ (February 2007) ( www.usnews.com/articles/news/national/2008/02/07/mental-health- courts ) 38
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Clark County • 71% of MIRAP clients had no criminal justice contact in the 6 Mentally Ill Re- months post-enrolment arrest Prevention • Overall, crime rates for MIRAP participants was reduced 3.8 times Program post-enrolment compared with pre-enrolment 96 (MIRAP) o Pre-enrolment – 119 MIRAP participants were booked 288 times o Post-enrolment – 34 MIRAP participants were booked 76 times • There was a 56% reduction in probation violations
Palmer Mental • Reductions in both criminal and clinical recidivism measures Health Court 97 resulted in a net institutional saving greater than the annual operation cost of the program • 17% of Mental Health Court participants (5% of graduands) engaged in new criminal conduct after exiting the program, compared with 40% of mentally ill defendants in the conventional criminal justice system • MHC participants were less likely to commit new felony, violent or drug related crimes • Vast majority of participants (self) reported improvements along all quality of life domains as a result of participation in the Mental Health Court
Anchorage • Reductions in criminal and clinical recidivism resulted in savings to Mental Health the value of 2 ½ times the operational costs of the program 98 Court • 29.9% of graduands were remanded in custody one year post- participation compared with 47.2% of comparison group 99
4.3.7 While there are considerable differences in how Mental Health Court programs are designed and implemented, the above evaluations indicate that such courts and diversion programs are, in general, achieving their objectives, including: • Improving participants mental health and stability; and • Reducing their offending behaviour.
96 Herinckx H, Swart S, Ama S and Knitson J, ‘The Clark County Mentally Ill Re-Arrest Prevention Program Final Evaluation’ (2003) ( www.rri.pdx.edu/pdfMIRAP_Final.pdf ) 97 Note 92 98 ‘Outcomes from the Last Frontier: An Evaluation of the Anchorage Coordinated Resources Project’ (2008) Hornby Zeller Associates Inc. 99 The comparison group consisted of mentally ill defendants who chose not to participate in the project
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A number of these evaluations also indicate that the savings made in relation to reductions in criminal and clinical recidivism rates of participants significantly outweigh the operational costs of the programs.
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5 Care and Service Providers 5.1 Survey 5.1.1 The survey sent out to the relevant care and service providers provided an interesting and informative insight into the opinions and perceptions of this group about the operation and achievements of the MHDL. The information collected is relevant to both the processes and the outcomes of the MHDL; therefore it was decided to include it as a separate part of the report.
5.1.2 In late February, surveys were sent out to all the relevant care and service providers in the Hobart/Southern Tasmania region (total # = 26). The list of service providers was compiled using information from the MHDL data collection (specifically Bail Conditions and Final Sentencing Orders) and ‘A Practitioner’s Guide to Mental Health Services in Southern Tasmania’. 100 The FMHCLO also made some suggestions about possible recipients.
5.1.3 The survey comprised 16 Likert-type questions and seven short answer questions relating to the respondent’s knowledge about, and opinion of, the MHDL initiative. 101 It was specifically designed to be brief and uncomplicated to complete in order to elicit the maximum number of responses.
5.1.4 By mid-March, a total of 11 responses had been received. A follow- up/reminder letter and additional survey was then mailed out to those care and service providers who had not responded. This resulted in an additional six responses; however, two of these were incomplete and therefore were not included in the final analysis.
5.2 Analysing the Data
Likert-Type Questions
5.2.1 For the Likert-type question component of the survey, respondents were asked to answer each question according to the following scale: • Strongly Disagree • Disagree
100 A comprehensive list of mental health service providers which was compiled by Hannah Graham (www.utas.edu.au/sociology/CRU/Practitioners_Guide_Mental_Health_Services_Sthn_Tas.pdf ) 101 A copy of the survey is attached as Appendix 5
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• Neutral • Agree • Strongly Agree There was also a sixth option of ‘No Answer’ which respondents were instructed to use if they had no opinion or did not understand the question. 102
Summary 5.2.2 The responses to the first section of the survey indicate that the vast majority of care and service providers are aware 103 of the MHDL, although the level of their understanding of its operation and functions is not quite as high. 104 The majority disagreed that there was sufficient information resources on the MHDL available currently. 105
5.2.3 Most respondents agreed or strongly agreed that the MHDL is serving the intended population 106 and that it is helping to improve the lives of the participants and their families. 107 The respondents also agreed that the MHDL is of benefit to the general community. 108 There was, however, more divergence in opinion about whether clients of the services had successfully completed the MHDL program or had a positive experience whilst on the program. There was also significant divergence in opinion about whether the MHDL helped to prevent participants from
102 In order to analyse the data, the responses on the returned surveys were tallied (e.g. for question one, there were eight responses of ‘Strongly Agree’, six of ‘Agree’ and one of ‘Disagree’). Each point on the scales was then given a numerical value: • Strongly Disagree = 1 • Disagree = 2 • Neutral = 3 • Agree = 4 • Strongly Disagree = 5 The average response for each question was then calculated by multiplying the number of responses by the corresponding numerical value and dividing this by the total number of responses. For example, the ‘average’ answer to question one was calculated as follows: [8x5] + [6x4] + [1x2] 15 The ‘No Answer’ option was not given a numerical value. However, if a ‘No Answer’ was given, then the total number of responses would be reduced accordingly, for example, if 3 responses of ‘No Answer’ were given for a particular question, then the total number of responses for that question would be 12 103 Average response to question 1 = 4.4 104 Average response to question 2 = 3.8 105 Average response to question 16 = 2.8 106 Average response to question 5 = 4.6 107 Average responses to questions 6 and 7 = 4.2 and 4 respectively 108 Average response to question 15 = 4.1 42
Mental Health Diversion List Evaluation Report re-offending. This may, however, be a result of the respondents misreading the question, which was deliberately phrased in the negative. 109
5.2.4 There was a general agreement among respondents that the MHDL helps to improve coordination between justice agencies and health service providers. 110 However, most respondents answered that there is an inadequate number of treatment options available for MHDL participants and that this lack of services in the community is a major impediment to the operation of the MHDL. 111
5.2.5 Care and service providers disagreed that the MHDL had not helped to address the issues that their clients face. 112 However, they were largely neutral in their opinion as to whether the MHDL program delivered just sentences for participants. 113
Short-Answer Questions
5.2.6 The survey also asked respondents how they became aware of the MHDL and to make some general comments about what they believe are the positive and negative aspects of the MHDL program. 114
Summary 5.2.7 Five out of the nine survey participants who answered the question stated that they became aware of the MHDL through word of mouth, largely from the FMHCLO but also through the Mental Health Services Forum. Others stated that they became aware of the program either through their work (2), the television (1) or the newspaper (1).
5.2.8 There was a wide variety as to what the respondents saw as the positive aspects of the MHDL program. Some noted the ability of the program to ‘problem solve’, while others commented on the prevention of (inappropriate) incarceration and the diversion from gaol. Many saw the fact that the MHDL provided participants with the opportunity to engage in treatment as being a very positive aspect of the program.
109 See question 9 on Appendix 5 110 Average response to question 8 = 4.1 111 Average responses to questions 11 and 10 = 2.4 and 4.1 respectively 112 Average response to question 13 = 2.2 113 Average response to question 14 = 3.5 114 See questions 20 through to 23 on Appendix 5
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5.2.9 The early recognition of mental illness by the courts and the fact that the courts paid attention to how mental illnesses may have contributed to the offending were also cited by respondents as positive aspects of the MHDL.
5.2.10 The survey respondents made considerably less comments about the negative aspects of the MHDL program. Issues such as insufficient funding, resources and information were raised as negative matters. One respondent also commented that they were unclear about what the court’s expectations of them as a service provider were when an order was made. It is interesting to note that at least three respondents specifically stated that there were no negative aspects of the MHDL program.
5.2.11 Respondents were also given the opportunity to make further comments about the MHDL initiative. The majority of these were positive comments about the work of the program and those involved in it. Several requested more information and/or training for mental health services. One respondent noted that while the List is ‘doing a lot of good’, it is ‘still reactive and a more proactive mental health system’ needs to be developed. Another commented that, anecdotally, some clients only receive treatment once they have committed an offence.
5.2.12 In general the survey responses suggest that the MHDL program is well received by the care and health services provider community. However, there are a number of concerns in relation to the lack of information available to these stakeholders and therefore, presumably, to the general public.
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6 Intake Data 6.1 Scope of Data 6.1.1 The scope of intake data was initially compiled by a Master’s student from the University of Tasmania and have been continued by the evaluators using information available on the CRIMES database, 115 courtroom observations and information supplied by the FMHCLO. The data provides information about who is accessing the MHDL program and how they are accessing it. The data also gives an indication as to whether the MHDL program is serving its intended target population.
6.2 Referrals and Representation 6.2.1 There have been 137 offenders referred to the MHDL program during the first 24 months of its operation, 25 of whom have been removed for a variety of reasons, including ineligibility and non-compliance. Of the 112 who were accepted onto, and remained on, the List, 88 have successfully completed the program and have had their matters finalised.
6.2.2 Lawyers (including Legal Aid and private) have made the most referrals (43.1%), followed by Forensic Mental Health Services/Mental Health Services (32.1%) and magistrates (16.8%).
Table 1: Source of Referral (all defendants) Source # of Defendants Percent Lawyer* 59 43.1% FMHS / MHS 44 32.1% Magistrate 23 16.8% Police Prosecutor 2 1.5% Family 2 1.5% Correctional Health (Prison) 1 0.7% Private Psychiatrist 1 0.7% NGO 1 0.7% Self 1 0.7% N/A 3 2.2% Total 137 100%
* Legal Aid = 40, Private = 19
115 Criminal Registration Information Management & Enquiry System, Magistrates Court of Tasmania
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6.2.3 This indicates that referrals from those who are not intimately involved in, and therefore aware of, the MHDL program are limited. This could suggest that there is insufficient knowledge about the program or how to make referrals by both the general public and private/non-government health care and service organisations. 116
6.2.4 Most stakeholders and a number of past participants made some comment about the lack of information available about, and/or publicity of, the MHDL. One interviewee mentioned that the majority of (operational) police officers ‘…would not have a clue about (the MHDL) because it is just not something that they are subjected to. They never get called to go to a hearing, so they just wouldn’t know.’ Another noted that a lot of lawyers, particularly private ones, don’t even know it exists. ‘…I think that’s a major problem because the lawyers are the ones who really should be picking these things up because they are the ones seeing their clients for a quarter hour, half hour, an hour and a half or whatever before they come into court…But I get that so rarely, so rarely do I have a lawyer stand up and tell me that this is a possible Mental Health Diversion List matter…I could count on one hand, I reckon, in the last 18 months (the number of times) that has occurred’.
6.2.5 One stakeholder suggested noting matters that have gone through the MHDL on a participant’s criminal record. 117 This would indicate to police that the defendant has mental health issues and could also help ensure that mentally ill defendants do not accidentally ‘slip through’ the court system.
6.2.6 Two case study interviewees commented that the lack of knowledge about the MHDL program meant that it took some time for their matters to be referred to the List. This was frustrating for these defendants and their families as it meant they had to make a considerable number of appearances in regular court lists before they were able to enter the MHDL program and, importantly, engage in treatment.
116 A lack of information and knowledge about the MHDL was also indicated in the responses to the care and service providers’ survey – see paragraphs 5.2.2 and 5.2.10 above 117 As is currently done for Youth Justice matters 46
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6.2.7 It does appear, however, that the majority of referrals to the MHDL that are made are correct (in terms of mental health issues) and appropriate (in terms of eligibility). During the first two years, only 12 defendants referred to the List have been removed because of the absence of a mental health issue (see table 2 below). According to the FMHCLO, who conduct the assessments and make the recommendation as to whether defendants ought to be accepted onto the List or not, the majority of referrals made by the magistrates and Legal Aid lawyers have been appropriate. They believe that inappropriate referrals are often a result of a lack of understanding of the nature of the List, and occasionally (particularly in relation to private lawyers) an intentional attempted misuse of the program (i.e. simply to get their clients a lesser sentences). 118
Table 2: Reason for Removal (unsuccessful defendants) Reason for Removal # of Defendants Percent No Mental Illness 12 48% Non-compliant on program 7 28% Withdrew Consent 2 8% Capacity/Fitness to Plea Issues 2 8% Re-arrested (serious offence) 1 4% Deceased 1 4% Total 25 100%
6.2.8 The majority of all offenders referred to the MHDL are represented by Legal Aid (62.8%), just over one quarter are represented by a private lawyer (27%), while the remaining 10.2% are self represented.
Table 3: Legal Representation (all defendants referred to List) Representation # of Defendants Percent Legal Aid 86 62.8% Private 37 27% Self Represented 14 10.2% Total 137 100%
118 While this may have been the situation on a small number of occasions, the data does not necessarily support this assertion (to date there have only been four referrals by private lawyers where the defendant has subsequently been assessed as not having a mental illness)
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6.2.9 The disparity between the use of private lawyers and Legal Aid could be explained, as suggested by one stakeholder, by the general demographic and characteristics of many people with mental illnesses who enter the criminal justice system. That is: • they are in a lower socio-economic bracket; • they are less likely to have regular paid jobs or be able to hold down employment; and • a high proportion are either homeless or have housing issues.
6.3 Charges and Offences 6.3.1 The average number of current charges brought against a MHDL participant is 5.1. Over half the participants on the List have less than three current charges (56.2%), just over one fifth have between four and five charges (21.5%) and 13.4% have more than 10 charges (see table 4).
Table 4: Number of Charges (participants accepted onto MHDL) # of Current # of Defendants Percent Charges 1 25 22.3% 2 27 24.1% 3 11 9.8% 4-5 24 21.5% 6-10 10 8.9% +10 15 13.4% Total 112 100%
6.3.2 In total there have been 575 current charges brought against the 112 MHDL participants. These were categorised according to the ABS Australian Standard Offence Classification in order to give a better indication of what offences MHDL participants were being charged with. 119 Of 575 charges, just over one quarter
119 See the Australian Bureau of Statistics website for all divisions and subdivisions of the classifications used (www.abs.gov.au/ausstats/[email protected]/mf/1234.0 ) 48
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(26.2%) were offences against justice procedures, 120 23.3% were theft and related offences 121 and 16.5% were traffic regulatory offences. 122
Table 5: Classification of current charges against participants accepted onto MHDL ASOC Classification # of Defendants Percent Offences Against Justice Procedures, 151 26.2% Government and Government Operations Theft and Related Offences* 134 23.3% Traffic and Vehicle Regulatory Offences 95 16.5% Public Order Offences 53 9.2% Acts Intended to Cause Injury** 50 8.7% Property Damage and Environmental 35 6.1% Pollution Fraud, Deception and Related Offences 20 3.5% Illicit Drug Offences 16 2.8% Unlawful Entry with Intent/Burglary, Break 15 2.6% and Enter Prohibited and Regulated Weapons and 5 0.9% Explosives Offences Abduction, Harassment and Other 1 0.2% Offences Against the Person*** Total 575 100%
* 57 Charges of Stealing were brought against one defendant. This may distort the results to an extent. * *Includes Assault and Assault a Police Officer *** Includes Stalking Note: Classifications where no crimes were recorded were not included in the table.
6.3.3 The 25 defendants who were referred to the List but deemed ineligible or subsequently removed were charged with a total of 192 offences. Of these, 16% were charged with 3 or less offences while almost half (48%) were charged with between 6-10 offences.
120 Offences against justice procedures include; Breach of Bail and other judicial orders or notices, Failure to Appear, Failure to comply with directions of Police Officer or resisting a Police Officer and Stating a false name 121 Including Stealing, Motor vehicle stealing and Making off without payment 122 Including Driver Licence offences, Vehicle registration offences, Exceeding speed limits and Exceeding alcohol limits
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Table 6: Number of Charges (defendants removed from MHDL) # of Current # of Defendants Percent Charges 1 2 8% 2 2 8% 3 0 0% 4-5 5 20% 6-10 12 48% 10+ 4 16% Total 25 100%
Table 7: Classification of current charges against defendants removed from the MHDL ASOC Classification # of Defendants Percent Offences Against Justice Procedures, 49 25.5% Government and Government Operations Traffic and Vehicle Regulatory Offences 38 19.8% Acts Intended to Cause Injury* 28 14.6% Public Order Offences 22 11.5% Theft and Related Offences 21 10.9% Property Damage and Environmental Pollution 15 7.8% Illicit Drug Offences 12 6.2% Unlawful Entry with Intent/Burglary, Break and 3 1.6% Enter Abduction, Harassment and Other Offences 3 1.6% Against the Person** Robbery, Extortion and Related Offence 1 0.5% Total 192 100%
*Includes Assault and Assault a Police Officer ** Includes Stalking Note: Classifications where no crimes were recorded were not included in the table.
6.4 General Characteristics of MHDL Participants Age 6.4.1 The age of MHDL participants varies greatly from 19 years to 78 years. This broad spectrum of ages reflects what is generally recognised about mental illnesses, that is, having a mental illness is not limited to a particular age group and does not 50
Mental Health Diversion List Evaluation Report cease to occur once a person reaches a certain age. It is interesting to note, however, that males aged between 20-29 years accounted for 42% of all male participants (who were accepted onto the list), whereas the greatest number of female participants were aged between 40-49 years (37.2%).
Table 8: Age (participants accepted onto the list) Age Female Male Total <20 4.7% 2.9% 3.6% 20-29 16.3% 42% 32.1% 30-39 23.3% 24.6% 24.1% 40-49 37.2% 18.8% 25.9% 50-59 11.6% 7.2% 8.9% 60-69 7% 2.9% 4.5% >70 0% 1.4% 0.9% Total 100% 100% 100%
The MHDL population is generally much older than the general offender population that comes before the court: over 40% of participants accepted on the MHDL are over the age of 40, while during 2007 and 2008 only 20.9% of the general offender population was over that age. People between the ages of 18 and 30 account for 35.7% of cases on the List, while the same age group accounts for approximately 56% of cases in the Magistrates Court generally.
Table 9: Age by gender, Magistrates Court, 2007/2008 Age Female Male Unknown/ Total Not stated <20 13% 19.7% 1% 17.8% 20-29 38.8% 38.1% 39.2% 38.3% 30-39 25.6% 21.9% 23.5% 22.9% 40-49 15.7% 12.7% 24.5% 13.5% 50-59 5.3% 5.3% 9.8% 5.3% 60-69 1.3% 1.9% 2% 1.7% >70 0.3% 0.4% 0% 0.4% Total 100% 100% 100% 100%
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Gender 6.4.2 Males account for just over 60% of all MHDL participants. As a comparison, over the last four years of data collected and provided to the ABS, male defendants accounted for approximately 65% of defendants finalised in the Tasmanian Magistrates Courts. 123
Figure 2: Division of gender of MHDL participants
Gender
38% Male
Female
62%
Diagnosis 6.4.3 Schizophrenia is the most common mental health diagnosis for MHDL participants (44.6%), however the majority of schizophrenic participants were male. Female participants were more likely than males to be diagnosed with bi-polar disorder, depression, post-traumatic stress disorder (PTSD), personality disorders, obsessive compulsive disorder (OCD) and anxiety. An equal percent of male and female participants are diagnosed as having psychosis.
Table 10: Diagnosis (participants accepted onto the list) Diagnosis Female Male Total Schizophrenia 18.6% 60.9% 44.6% Bi-Polar Disorder 27.9% 13% 18.8% Depression 14% 4.3% 8%
123 See Australian Bureau of Statistics, ‘Criminal Courts’ (2006-07) ( www.abs.gov.au ): Year % Males % Females 2003-04 66.1 29.0 2004-05 65.1 30.6 2005-06 64.9 31.5 2006-06 65.4 31.8.
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Psychosis (nos)* 7% 7.2% 7.1% PTSD 14% 1.4% 6.2% Personality Disorder 11.6% 1.4% 5.4% OCD 4.7% 1.4% 2.7% Anxiety 2.3% 1.4% 1.8% Delusional Disorder - 2.9% 1.8% Delirium** - 1.4% 0.9% Huntington’s Disease - 1.4% 0.9% Schizoaffective Disorder - 1.4% 0.9% Other - 1.4% 0.9% Total 100%
* nos = not otherwise specified ** delirium due to epilepsy
6.4.4 These general characteristics, as well as the data related to reasons for removal of unsuccessful participants, suggest that the List is serving the broad range of intended population (i.e. defendants whose offending behaviour is related to their mental illness or mental health problems). They also indicate that the MHDL is not discriminating against participants on the basis of age, gender or mental illness diagnosis.
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7 Process Evaluation 7.1 Aim 7.1.1 The aim of the process evaluation is to look at the operation of the MHDL, in a practical sense, to see whether it is functioning in an efficient manner and to indicate what areas need to be changed, developed or improved.
7.1.2 In a process evaluation more emphasis is placed on the subjective understanding and opinions of all those who participate in the MHDL (magistrates, practitioners, FMHCLO and defendants) rather than objective findings, therefore this part of the report will focus on the information collected in the interviews with all relevant parties and observations by the evaluators. However, some quantitative data will be used to supplement this qualitative data.
7.2 Scheduling Arrangements 7.2.1 Originally, the MHDL was held on one Thursday afternoon each month. Although this was initially adequate, as the number of List participants increased, it became evident to many stakeholders that this arrangement was insufficient. On a number of occasions, the Lists were too large and ran considerably over-time. Not only is this inconvenient for those involved in an operational sense, it is also not therapeutic for defendants on the MHDL to have to wait for long periods of time in court before their matters are heard. During one particularly long sitting of the MHDL, the evaluator observed a number of defendants, specifically young males, getting quite agitated and restless. This was quite disruptive for those sitting in the court (including other MHDL participants and their families/support persons).
7.2.2 To avoid this situation, it has been suggested by several stakeholders that two sittings of the MHDL be held each month. This has occurred in both March and May of this year and it appears to ease the strain on all involved in the MHDL as well as reduce the actual court time of these sittings. At first, some stakeholders were a bit resistant to this idea as they thought it would significantly increase their workload; however this has proved not to be the case as yet.
7.2.3 It is interesting to note that in the nine case study interviews conducted, only one past participant in the MHDL complained about having to wait for a long time in court before their case was heard. The majority just accepted this waiting period as a
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‘normal’ part of any court procedure and did not expect it to be any different in the MHDL.
7.2.4 Scheduling problems have also been raised in relation to the actual setting of List dates. The FMHCLO remarked that they are not always aware and are not being told when the List dates are being set down. This creates issues for them in managing their workload and making recommendations about case finalisations. These problems would likely be resolved if the List was held at a set time each month (e.g. the 2 nd and 4 th Thursday afternoon of each month).
7.3 Assessments 7.3.1 As mentioned above at 6.2.7 , the majority of referrals to the MHDL have been appropriate and only 12 defendants have been returned to the general list because they did not meet the mental illness criteria.
7.3.2 All defendants referred to the MHDL are assessed by a FMHCLO to confirm their eligibility and suitability. During an assessment 124 the defendant is asked questions about the circumstances of the offence and their mental health history. They are also asked about their current treatment (if applicable). The FMHCLO may contact the defendant’s treating GP or private psychiatrist/psychologist to confirm their mental illness. If the FMHCLO deems them to be eligible and suitable, the general process of the List is explained to the defendant and they are asked whether they wish to consent to participate. If they agree, they are then asked to sign a consent form which also gives the FMHCLO permission to discuss their matters with: • Magistrates Court Staff; • a number of relevant health care and services providers; • family members; and • any other relevant agency. This helps to ensure a collaborative and therapeutic approach is taken to resolving the matter.
7.3.3 All stakeholders interviewed said that they believed the assessment and screening process was sufficiently rigorous to ensure that only genuinely eligible defendants are being allowed to participate on the List. A number also commented that the FMHCLO are managing the List participants properly and are actively
124 The evaluator observed approximately four assessments between February 2009 and April 2009
55 Mental Health Diversion List Evaluation Report removing those who are not compliant or whose substance abuse issues are preventing effective treatment of their mental health issues (see table 2 at page 45). 125 This helps to maintain the integrity of the List.
7.3.4 One past participant said that he believed that the List was being misused as ‘…a lot of people who don’t have a mental illness are going through this program…People will just say that they have a mental illness, but they don’t really…they can’t defend themselves and it’s the best option open to them…They’ll think the court will go easy on them.’
7.3.5 This view, however, was not shared by any of the other case study interviewees. Moreover, a number of interviewees commented on how being on the MHDL was less frightening and stressful for them as they were in a court which was dedicated to defendants with similar issues and mental health problems.
7.4 Pre-Court Meetings 7.4.1 Before each sitting of the MHDL, the FMHCLO and the relevant practitioners are supposed to attend a pre-court meeting where they discuss each defendant and come to an agreement about how their case ought to progress (i.e. whether it should be adjourned off to a later date, what reports may need to be sought and from whom or whether the matter ought to be finalised). 126 These meetings are essential to the successful management and operation of the List as they facilitate the collaborative approach of the MHDL. They also reassure the magistrates that the recommendations that are being presented to them are the result of a considered ‘team approach’ and therefore can be accepted with lesser need for additional examination. This is particularly important as, unlike other courts, 127 the magistrate does not generally receive any preliminary written reports.
7.4.2 In recent months it appears that these meetings have been occurring less regularly and not all relevant parties have been attending. 128 This is a concern to a
125 Co-morbidity is not listed as a separate reason for removal because some MHDL participants with substance use/abuse problems are still able to successfully participate in the List. Instead, those with co-morbid issues who were unsuccessful were classed as ‘non-compliant’, although this group includes unsuccessful participants who exhibited other non-compliant behaviour as well 126 The evaluator observed a pre-court meeting in February 127 Including other problem solving courts 128 Although, in the majority of cases some form of discussion about the cases has been occurring, it is usually in the form of electronic communication (e-mail) or just before the actual court appearance 56
Mental Health Diversion List Evaluation Report number of stakeholders as it inhibits information sharing and can complicate the actual court process.
7.5 In-Court Process Role of the Magistrate 7.5.1 As mentioned above, the MHDL is only ever presided over by two magistrates. For some stakeholders, this is a very important element in the successful operation of the MHDL as it allows for a consistency of approach: ‘By having a limited bench deal with (MHDL) matters it has meant that people with similar difficulties are getting treated in the same way…(There is) not only a sympathetic ear, but an ear that understands and has an appreciation of the issues.’
7.5.2 In the MHDL, the magistrates tend to allow and encourage a less formal approach to the proceedings and court environment in general. This is reflected in a comment made by one of the two List magistrates: ‘I try to get more involved in the Mental Health List than I do in other lists, for obvious reasons I suppose. And there’s more discussion about what the situation of the defendants is from time to time, so in that sense it’s a more measured approach.’
7.5.3 Both MHDL magistrates also make a conscious effort to speak directly to, and include, the defendant in discussions about their matters, especially about their progress on the List and in their treatment. They give praise for compliance and encourage each defendant to ‘keep up the good work’: ‘Involving the defendant in the process, which is very important of course, is something that we wouldn’t normally do in a general list, particularly when they are represented. But even when they are represented in the Mental Health List, I try to ask them, if I can, if they understand what is happening, if they’ve got any questions or anything to add, and that involves them of course.’
7.5.4 It is interesting to note that there was a slight division among the case study interviewees as to whether the MHDL magistrate talked directly to them or not and whether the language used in court was less formal or technical than in other courts. While most said that the language used was less formal and the magistrate talked directly to them, a number found the opposite occurred. However, none of the
57 Mental Health Diversion List Evaluation Report participants who found it to be a formal environment with very little or no direct communication had been involved in the Magistrates Court or the criminal justice system before. This lack of comparison may offer an explanation for their opinions.
7.5.5 The following are some of the comments made about the List magistrates by some past participants and their family members.
‘They could tell that I was really worked up and they accommodated it…they got my partner to come over and sit next to me on the big round desk…they were very aware of how I was feeling I think.’
‘It was easy to understand (what was being discussed) because they included you in the conversation.’
‘The magistrate, he was terrific. He was really good. He was understanding of me (sic) mental illness and how I’d become to get mentally ill and he was very supportive actually.’
‘He referred to things so that (my daughter) understood why she was there. And when you are on medication you get a bit hazy about things that have happened, so it was good that he mentioned things like that.’
‘I felt at ease and I wasn’t worried about what he was going to say or anything like that.’
‘Prior to (finalisation) there was no direct communication basically.’
‘It was very formal, it was very much, in all other respects than that its name was Mental Health Diversion List, it proceeded as I have only really seen other court matters proceed.’
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Roles of Prosecution and Defence 7.5.6 As described in much of the literature on problem solving courts and therapeutic jurisprudence, the role of counsel in the MHDL differs significantly from usual adversarial courts. Because the facts and guilty plea are not normally in contention and the matter has (theoretically) already been discussed and agreed upon by all relevant parties, there is almost no debate about the case in the court room. However, when practitioners who are unfamiliar with the objectives and the processes of the List appear in the MHDL, they tend to be less collaborative and try to adopt a traditional adversarial approach. As one stakeholder put it ‘…they almost have to have a client go through the List to understand how it works.’
7.5.7 As with the magistrates who preside over the List, the MHDL has a dedicated police prosecutor. 129 According to one stakeholder, this continuity allows for matters to be dealt with in a consistent fashion. It also allows the prosecutor to develop a relationship with the FMHCLO and the defence counsel, which in turn means matters are dealt with quicker because everyone ‘…is on the same wave length.’ The current MHDL prosecutor has not received any specific training for the MHDL (either in relation to its operation or in relation to mental illnesses); however this did not concern him as he believes that the List is significantly less technical than regular courts.
7.5.8 The prosecutor in the MHDL setting may also decide to contact the complainant or victim in some cases in order to describe the operation and purpose of the List and explain what the probable outcome will be. This enables the victim to have some input into the case and therefore, hopefully, feel more satisfied with the outcome. However, this practice has become less common in recent months.
7.5.9 Again, because of the underlying theory of the MHDL, the role of the defence lawyer differs from what it would be in a regular court. According to one practitioner, this unfamiliar role can be somewhat confusing to begin with: ‘I found that really difficult at first, knowing what our role was, it was pretty uncertain…You are just not driving the process quite as much as you might have been (in regular lists).’ 7.5.10 The defence lawyer still speaks on behalf of the defendant in many circumstances, as well as entering any pleas in mitigation when the matter is being
129 However the current police prosecutor is the third one to be involved with the List since it began 24 months ago
59 Mental Health Diversion List Evaluation Report finalised. Most importantly, according to a number of MHDL participants, their defence lawyer acts as an interpreter to ensure they are aware of what is being decided and what the participant’s obligations/bail conditions are.
7.5.11 One MHDL participant commented that he was frustrated because his lawyer was unaware that his case had progressed to the finalisation stage and it had to be adjourned off for another month. This occurrence was not confirmed by either the FMHCLO or the lawyer. However, a situation like this could be prevented in future through regular attendance at the pre-court meetings by all parties (including private lawyers).
7.5.12 Below are a number of comments made by past MHDL participants about their defence counsel.
‘I can understand about 70% of (what is said in court), but when they go through this paragraph and that paragraph, I’ve got no idea, but after court the lawyer comes out and he sort of explains it to me in layman’s terms.’
‘The solicitor was real good; they worked well with the mental health team.’
‘(The lawyer) was very supportive of me and that.’
‘She (explained what was being discussed) that day when I went to court and I couldn’t understand what the judge was saying. She got up and talked for me’
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Role of the Forensic Mental Health Court Liaison Officers (FMHCLO) 7.5.13 The FMHCLO are central to the effective operation of the MHDL. Their duties and responsibilities include: • Conducting assessments to determine the eligibility and suitability of referred defendants; • Referring participants to appropriate service providers; • Monitoring the level of engagement and compliance of participants and providing reports to the court in relation to this; • Making recommendations to the court about changes to treatment regimes and/or bail conditions; and • Liaising with prosecution and defence to determine the progression of the case and the date of finalisation.
7.5.14 It should be noted, however, that the MHDL constitutes a small proportion of their overall workload (approximately 2-3 days per fortnight). FMHCLO also provide assessment, intervention and referral services to mentally ill defendants who do not participate in the MHDL. They also liaise with magistrates, solicitors, police and community corrections staff about mental health matters and management of individuals.
7.5.15 There has been some discussion about whether the FMHCLO are employees of the Department of Justice or the DHHS. 130 It is important to note that the FMHCLO see themselves solely as employees of DHHS, which gives them more influence in the health care and service sector and enables them to access better treatment services for MHDL participants and in a timelier manner: ‘In the rest of Australia, they (FMHCLO) are all court employees, they’re justice employees, but then you’ve got the challenge of trying to get those people to do an effective job in the health system, which can be really hard.’
7.5.16 One of the major strengths of the MHDL model as it currently stands is the role of the FMHCLO as key players who essentially straddle the two departments. Not only are participants delivered a higher quality of service (both in terms of their mental health treatment and their involvement in the criminal justice system), the
130 This would affect what their actual status is; as expert witnesses, participant advocates or officers of the court, which in turn would have an effect on their relevant duties, obligations and powers
61 Mental Health Diversion List Evaluation Report paradigms that often operate to separate these agencies are effectively being broken down and collaboration is being greatly increased.
7.5.17 Regardless of any uncertainty about their employment status, almost every person interviewed for the MHDL evaluation (stakeholders and past participants) made positive comments about the FMCHLO. Some of these are included below.
‘The FMHCLO are, in my view, the ones doing all the work.’
‘The MHDL has increased the co-ordination of (health and justice) services. This is largely due to the work of (the FMHCLO), who do a fantastic job.’
‘Our FMH people are doing an excellent job.’
‘She was very compassionate.’
‘…very responsive and very…supportive.’
‘Yeah, she’s terrific. Yeah she’s really good with the people that she deals with. I watch her in court when I go to court sometimes, I watch her and she’s really, umm how would you put it, she tries, she tries hard.’
‘She would always…follow up on anything that was discussed and…she would ring up and explain stuff to me before and after meeting with the lawyer. She was really good.’
Defendants 7.5.18 As mentioned above, a therapeutic approach to criminal justice matters means that defendants, and even represented defendants, can have a more active role in the court. This can result in greater satisfaction for the defendant, both in terms of the process and the final outcome.
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7.5.19 In the MHDL, defendants are usually asked by the magistrates whether they understand what is going on and whether they have anything they would like to add. On most occasions defendants simply reply that they do understand and decline the offer to add additional information. 131 This is probably due to the fact that while the court is considerably less formal than other courts, it is still an unfamiliar situation for them. One case study interviewee said that she thought she was not allowed to participate directly in the proceedings and when she wrote an apology letter that was handed to the magistrate, she felt like she had committed a ‘gross sin’ because ‘it was like you don’t talk, your solicitor talks’.
7.5.20 Despite some lack of direct participation, it appears that MHDL defendants are generally satisfied with the court process and the eventual outcomes. Almost all stakeholders interviewed made some reference to this:
‘…because it puts more of a onus on to the defendant…they are much more invested in it, they understand the process much more and they take more responsibility for the offences and their treatment.’
‘I think we often get a more meaningful outcome, or not even the outcome, just the process, when (the defendants) are getting bail conditions that are much more meaningful conditions…its more meaningful in terms of treatment for the client…the whole process becomes therapeutic.’
‘From (the client’s) perspective, it’s a recognition that it’s not because they want to offend that they are doing things, it’s because of an illness. I think, in general, my clients are happy that it exists.’
‘It really empowers them…they have a choice and so they feel as
131 This is taken from direct courtroom observations. Even when a defendant is unrepresented, because the facts of the case are not in contention and clinical information about the participant is presented by the FMHCLO, they generally only answer questions directed at them and rarely elaborate in any detail
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though…the power is really with them. They don’t come to us and say, ‘how have I been doing?’…they come to us and say, ‘this is how I have been doing.’…it’s not what we do, it’s what they do.’
‘In (other courts) they’re confused, probably frightened and quite silent and non-animated in any sort of connective way, whereas in this court, probably because they are surrounded by people who have empathy for them and are assisting them, they are appreciative and more relaxed. And I guess more compliant as well, they probably understand what is happening a little more…’
‘I think there’s a sense of satisfaction, and deservedly so, from them. I don’t do the program, they do, so it’s their effort that is being congratulated, the court is just facilitating that.’
7.5.21 This sense of investment in the process, and therefore commitment to the List and the obligations imposed by it, can be seen to be reflected in the relatively small number of participants who have failed to appear at MHDL sittings. 132
Table 11: Number of Non-Appearances (all participants accepted onto the List) # of Non-appearances Number Percent
0 80 71.4%
1 22 19.6% 2 6 5.4% 3 2 1.8%
4 2 1.8%
Total 112 100%
7.5.22 A number of the non-appearances can be explained by the fact that the defendant was ill and/or hospitalised as a result of their mental illness at the time of their court date. When a defendant does not make an appearance the police prosecutor tends not to charge them with breach of bail as it would ‘…just compound the problem... (when) it’s more of a health issue rather than a criminal issue.’
132 Unfortunately there is no data from regular court lists to use as a comparison. However, according to the available literature and comments from relevant persons, mentally ill defendants usually have difficulty in keeping appointments and therefore often breach their bail by failing to attend (conventional) court 64
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7.5.23 One case study interviewee commented on his sense of investment in the program. He found that the bail conditions that were set during his review period gave him ‘…a goal to head for so that I could keep it straight’. Another interviewee found that the threat of being removed for non-compliance was a very powerful tool in helping her remain on track.
7.5.24 One of the major indicators of the effectiveness or the MHDL in relation to participants has been the reduction in re-offending rates. This is discussed in detail below in section 8.
7.6 Bail Conditions and Reviews 7.6.1 As well as being an effective means to engage the participant in necessary treatment, the bail conditions set by the MHDL magistrates are proving to be an effective way of increasing the integration between the justice system and health services. According to the FMHCLO, mental health services have been very cooperative and supportive of the List. This is assisting the FMHCLO in getting feedback on participant’s progress, which in turn helps to ensure that the correct bail conditions are being set and that matters are finalised when the defendant’s mental state is sufficiently stable. One stakeholder commented that there is still a need to integrate the service providers into the court more in the sense that case managers turn up to court more often.
7.6.2 The review component of the MHDL is also very important as it is an opportunity for the participants to demonstrate their dedication to and compliance with the program and in turn receive praise from the magistrate for this. As one stakeholder put it, ‘…people are incredibly affected by the positive feedback that they get from the magistrates because these are people that don’t often get any positive feedback ever’.
7.6.3 Sanctions and verbal reprimands are not used very regularly in the MHDL. Participants are removed from the List for significant or persistent non-compliance, however this has only occurred 8 times to date (see table 2 at page 45). According to one stakeholder, this high level of compliance with bail conditions is due to the fact that the participants ‘…want treatment and they want support and assistance and they are more than happy to receive it.’
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7.7 Finalisation 7.7.1 The average number of appearances for MHDL participants is 2.8 over a period of 4 months (17 weeks). 133
Table 12: Total Number of MHDL Appearance before Finalisation (successfully completed participants) # MHDL Appearances # of Defendants Percent 1 16 18.2% 2 18 20.4% 3 30 34.1% 4 16 18.2% 5 6 6.8% 6 2 2.3% Total 88 100%
Table 13: Total Number of Months on MHDL (successfully completed participants) # of Months on MHDL # of Defendants Percent <1 16 18.2% 1-2 12 13.7% 2-3 7 7.9% 3-4 16 18.2% 4-5 12 13.7% 5-6 9 10.2% 6-7 6 6.8% 7-8 3 3.4% 8-9 2 2.3% 9-10 3 3.4% 10-11 1 1.1% 17 1 1.1% Total 88 100%
7.7.2 A number of interviewees said that their main reason for participating in the MHDL was the incentive of receiving a lesser sentence at the end of their time on the
133 Defendants may have appeared on general lists over a number of months before being referred to the MHDL. This research did not examine the length of time the defendant was in the system before referral or the amount of time between being charged and referral to the MHDL and finalisation. 66
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List. Other interviewees said their main reason for participating was the chance to engage in treatment and/or simply the fact that their lawyer had recommended the program to them. The following table represents all sentences that have been handed down in the MHDL to date (see Appendix 4 for the relevant section of the Sentencing Act 1997). Unfortunately no data is available to compare the sentences received by MHDL participants and defendants with like charges who are processed through the regular court system.
Table 14: Final Sentences imposed by MHDL (successfully completed participants) Sentence # of Defendants Percent TNE* 14 14% s7(b) – suspended sentence 6 6% s7(c) – community service order 1 1% s7(f) – conditional release order - conviction recorded 10 10% s7(f) – conditional release order – without conviction 47 47% recorded s7(h) – charges dismissed 9 9% Licence Disqualified 13 13% Total 100** 100% * TNE = prosecution tendered no evidence and the matter was dismissed ** Total number of sentences is greater than 88 because a number of defendants received more than one sentence
7.7.3 Some stakeholders have expressed concern that some sentences handed down, particularly s7(f) without conviction orders, are not necessarily proportionate to the offence as the defendant has essentially been on a good behaviour bond during the period of participation in the MHDL. Of particular concern to these stakeholders is that during a good behaviour bond period of a s 7(f) without conviction order, the finding of guilt does appear on the participant’s criminal records. It has been reported that this has prevented some MHDL participants from gaining employment in certain vocations and service sectors during this period. This can be quite detrimental to their mental health and any improvements they have made while on the List. While it is recognised that there are a number of legitimate policy reasons for not changing the way a s7(f) order operates, and that it would be inequitable to do so specifically in relation to MHDL participants, this feature of the order may need to be taken into consideration when stakeholders are discussing what final order is to be made. In
67 Mental Health Diversion List Evaluation Report certain circumstances, it may be appropriate to suggest a shorter good behaviour period.
7.8 Data Collection 7.8.1 The present MHDL data collection processes are uncoordinated and insufficient. Apart from an initial assessment and diagnosis, very little data is collected about a participant’s mental health. 134 This makes any detailed and/or objective evaluation of the MHDL’s ability to improve this area of participants’ lives virtually impossible. If it is decided that a future evaluation which considers these things is to be conducted, it will be necessary to implement a more coordinated data collection and storage process. 135
7.8.2 The FMHCLO also commented that their current data collection and storage method is ‘slow, laborious, cumbersome and not entirely transparent or independent’. An attempt was made to find out how other jurisdictions collected and collated data from their Mental Health Courts and other problem solving courts. However, only South Australia responded and their data collection methods did not appear to be any more coordinated or efficient than the method currently employed by the FMHCLO. 136
7.8.3 In order to improve the data collection processes, consideration should be given by both the Department of Justice and the DHHS to the following areas: • How to achieve reliable collection of data (including data related to MHDL participants, services, criminal justice outcomes and mental health outcomes); • How to ensure the consistent collection of health treatment data (e.g. via designated standardised clinical data tools); • How to ensure standard access to police records in order to obtain recidivism data; and • The need for shared responsibility in relation to data collection, storage and evaluation.
134 A small amount of information may be captured during courtroom observations, however this is not guaranteed 135 It may be possible to access this information through the relevant DHHS database, however specific ethics clearance would be required, which may take some time to obtain 136 An example of the South Australian MCDP data collection sheet is attached as Appendix 6 68
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7.8.4 Fundamentally the relevant agencies ought to appreciate that data collection is not a one-time research endeavour; it is an ongoing effort that is critical to understanding the List’s impacts and achievements over time. 137
7.8.5 There is also some resistance to formally collect data that relates to participants’ other criminogenic needs (for example, to their housing and employment situation or their ability to maintain familial or social relationships). 138 The reasons for this are varied but include: • It is too complex to collect data around issues which are not fixed (i.e. the situation may change from week to week); • Indicators of success are hard to define (i.e. it may be beneficial to the participant to get them hospitalised even though reducing the number of ‘bed days’ may be considered an objective of the program); and • It may be beyond the ability of the MHDL to try to address these issues for all participants. 139
7.9 Ten Essential Elements of a Mental Health Court 7.9.1 The American Bureau of Justice Assistance (BJA) 140 has published a report which details the ten essential elements of mental health court design and implementation. 141 Below is a short summary of the principles of each element along with a comparison with the operation of the Tasmanian MHDL initiative.
137 See Steadman H J, A Guide to Collecting Mental Health Court Outcome Data (2005) New York, Council of State Governments 138 Currently some of this data is collected anecdotally for some participants, however it is not captured in a consistent manner 139 Both MHDL magistrates commented that there would be significant issues of proportionality in terms of offences committed and time on List if the court attempted to engage the defendant in services beyond the health care sector 140 The BJA supports law enforcement, courts, corrections, treatment, victim services, technology, and prevention initiatives. The BJA has three primary components: Policy, Programs, and Planning. The Policy Office provides national leadership in criminal justice policy, training, and technical assistance to further the administration of justice. The Programs Office coordinates and administers all state and local grant programs and acts as BJA's direct line of communication to states, territories, and tribal governments by providing assistance and coordinating resources. The Planning Office coordinates the planning, communications, and budget formulation and execution 141 Thompson M, Osher F and Tomasini-Joshi D, ‘Improving Responses to People with Mental Illnesses: The Essential Elements of a Mental Health Court’ (2007) Bureau of Justice Assistance (http://consensusproject.org/mhcp/essential.elements.pdf )
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Element Principle Achieved Comment A broad based group of stakeholders should Project Team and Steering Committee comprise groups and need to continue to meet regularly in order Planning and committees which guide to ensure they continue to reach the Administration the planning and Yes intended objectives of these groups and administration of the the MHDL in general. Mental Health Court.
Ensure the eligibility The eligibility criteria of the MHDL are well criteria for participation defined and assessments are properly in the Mental Health Target conducted and managed. The Project Court guarantees that Yes Population Team will need to ensure that any relevant only appropriate and legislative changes are incorporated into suitable defendants are eligibility criteria (where appropriate). able to participate. Have been some incidents of late referrals and these may become more common as ‘known’ defendants have matters finalised Potential participants Timely and (hopefully) do not re-enter the criminal are identified and Participant justice system. referred to the Mental Identification Mostly Have been a very limited number of Health Court and linked and Linkage to incidents where participants were finalised into services as quickly Services before services ‘picked’ them up. as possible. Both aspects of this element would improve with greater (public) knowledge of program.
Terms of participation The terms of participation in the MHDL, are made clear to the which are reflected in the defendant’s bail defendant, conditions, are clear, individualised and Terms of individualised to Yes facilitate treatment. General program Participation correspond to their description (procedure manual) needs to needs and facilitate their be revised/up-dated in part. engagement in Option to withdraw without consequence treatment. exists. Participants must be competent to voluntarily MHDL key players appear to identify consent to participate Informed competency issues quickly and correctly. and counsel must be Yes Choice Legal Aid is available to provide advice to available to explain all defendants and clients. options and address any concerns of defendants. MHDL participants are generally well- Mental Health Courts linked with treatment services and options should connect (have been some problems with engaging Treatment participants to services outside the mental health scope). Supports and individualised and Mostly Some service providers reported not Services appropriate treatment knowing what they are required to do or support and services in what is expected from them when the the community court makes an order. It has been suggested that case- managers should be more involved.
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Court / Project Team should receive special Have very competent team that works and on-going training to collaboratively and reaches most medical ensure mental health and criminal justice goals. However, no or court participants Moderatel very little training has been offered to any Court Team achieve medical and y member of the court team. criminal justice goals. Project Team is not currently meeting as The Project Team also regularly as intended. need to regularly review
and revise procedures.
Mental Health Court Monitoring of adherence is achieved. staff collaboratively Removal for non-compliance does exist Monitoring monitor participants and is exercised occasionally. Sanctions Adherence to adherence to court/bail Mostly for minor non-compliance generally don’t Court conditions and modify exist though. Requirements these where necessary. Positive feedback from magistrate is a Also offer graduated major incentive for participants. incentives. There have been two evaluations of the MHDL conducted, however there needs to be systems in place for future evaluations Data are collected and (including better data collection and analysed to consideration of ethics requirements, demonstrate impact of funding needs, etc.) Mental Health Court. Processes and positions of Court Team This should occur Moderatel are understood by those who regularly Sustainability periodically. y operate in the MHDL, however these need Processes also need to to be institutionalised further to avoid roles be institutionalised and becoming idiosyncratic with key team support for program players. This will ensure the integrity of the needs to be cultivated MHDL and its operations. and expanded. Support for the initiative exists but does need to be cultivated further through education and publicity of the program.
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8 Re-Offending Outcomes 8.1 Aim and Approach 8.1.1 The primary aim of this part of the evaluation is to examine the effectiveness and value of the MHDL in respect of preventing or decreasing participants’ criminal behaviour. It guides recommendations as to whether the initiative should continue, and if so, what changes ought to be made so that greater achievements can be made in the future.
8.1.2 As mentioned above, this report compares the number of charges six months before and after participation in the List for each participant who has successfully completed the MHDL program before November 2008. It also includes a comparison of those participants who were removed from the List by this date. The methodological flaws and strengths of this approach are considered above at paragraph 3.1.6.
8.1.3 In order to get the most accurate representation of re-offending rates, it was decided that Tasmania Police prosecution file data (essentially apprehension/arrest rates) 142 ought to be used. This arrest data offers a ‘…more sensitive indicator of recidivism than data relating to prosecuted charges or convictions as it provides a closer approximation to the level of offending behaviour than other measures which are further downstream in the legal process’. 143 That is, arrest data better indicates the level of negative contact each participant had with police and the criminal justice system.
8.1.4 It needs to be acknowledged, however, that the data are not perfect as they fail to capture incidents where police decide not to arrest or charge a defendant or where criminal behaviour is not detected or reported.
8.2 Offending Rates 8.2.1 There were 52 MHDL participants who were suitable to be included in this section of the evaluation (i.e. their matters had been finalised before November 2008).
142 This data includes matters which were dropped before prosecution. However, it should be noted that only offences which were detected and reported by Tasmania Police were included. Information about offences committed interstate or internationally was not available 143 Note 44 at 66 72
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Table 15: Number of Offences committed 6 Months Prior to Participation in MHDL (successfully completed participants) # of Offences # of Defendants Percent 0 9 17.3% 1 13 25% 2 10 19.2% 3 5 9.6% 4 9 17.3% 5 4 7.7% +5 2 3.9% Total 52 100%
Table 16: Number of Offences committed 6 Months Post Participation in MHDL (successfully completed participants) # of Offences # of Defendants Percent 0 48 92.3% 1 2 3.9%
2 1 1.9%
+3 1 1.9% Total 52 100%
Figure 3: Comparison of number of offences committed pre- and post- participation by participants who have successfully completed the MHDL.
Number of offences committed (prior and post participation)
100 92.3 90 80 70 60 Prior 50 38.5 40 Post 30 25 17.3 19.2 20 10 3.9 1.9 1.9 Percentage (%) of of participants (%) Percentage 0 0 1 2 +3 Number of Offences
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8.2.2 The results show a reduction in the number of MHDL participants who offended post-program compared to pre-program as well as a reduction in the actual number of incidents charged against these offenders.
8.2.3 Over 92% of MHDL participants committed no offences during their six months post-participation compared to just over 17% in the six months before they entered the MHDL program. Over 57% were apprehended for two or more offences pre-program compared with only 3.8% post-program.
8.2.4 At an individual level (see figure 4), close to 80% of participants reduced their offending level (this number includes those who ceased offending completely). Just over 15% had the same level of offending (this includes those who did not offend at all during the six months prior and post participation) while only 5.8% of participants had a reported increase in their level of offending.
Figure 4: Frequency in offending
Shifts in frequency of offending
Fewer incidents post- 78.8 participation
Same pre/post 15.4
More incidents post- 5.8 participation
0 10 20 30 40 50 60 70 80 90 Percentage (%) of participants
8.2.5 Although the statistical significance of these data have not been calculated, they do appear to demonstrate a considerable drop in the number of offences committed by MHDL participants and the frequency of such offending. However, the
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Mental Health Diversion List Evaluation Report limited amount of data and the limited time frame for the comparison should be taken into consideration when interpreting these results.
8.2.6 It is also necessary to appreciate that the reduction in the re-offending rates may not be attributable, in whole or in part, to the defendant’s participation in the MHDL. That is, there may not be any causative connection between the MHDL and a reduction in re-offending rates. There are a number of other criminogenic needs of each participant that may have been addressed for a number of reasons other than participation in the List which may have in turn caused the observed reduction in offending behaviour.
8.2.7 Although it would have been valuable to do a comparison of the types of offences 144 committed pre- and post-participation in order to determine whether the type of offending changed (i.e. increased or decreased in seriousness), 145 the number of post-program offenders (# = 4) was too low to be able to use the data in any meaningful way.
8.2.8 Despite these caveats, the data do indicate some important results. The re- offending rates of those MHDL participants who were unsuccessful on the List can also be used to further indicate the success of the List (see tables 16 and 17 and figure 5 below).
Table 17: Number of Offences 6 Months Prior to referral to MHDL (unsuccessful defendants)
# Offences # of Defendants Percent
0 1 6.25%
1 2 12.5% 2 2 12.5% 3 1 6.25% 4 2 12.5%
5 1 6.25%
+5 7 43.75% Total 16 100%
144 Using the Australian Bureau of Statistics ‘Australian Standard Offence Classification (ASOC)’ system ( www.abs.gov.au/ausstats/[email protected]/mf/1234.0 ) 145 According to the Australian Bureau of Statistics ‘Nation Offence Index’ (www.abs.gov.au/AUSSTATS/[email protected]/Latestproducts/4513.0Appendix42007- 08?opendocument&tabname=Notes&prodno=4513.0&issue=2007-08&num=&view )
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Table 18: Number of Offences 6 Months Post referral to MHDL (unsuccessful participants) # Offences # of Defendants Percent 0 8 50% 1 2 12.5% 2 2 12.5% +3 4 25% Total 16 100%
Figure 5: Comparison of number of offences committed pre- and post- participation by participants who were removed from the MHDL .
Number of offences committed (prior and post referral)
80 68.75 70
60 50 50 Prior 40
30 25 Post
20 12.512.5 12.5 12.5
Percentage (%)of offenders (%)of offenders Percentage 10 6.25
0 0 1 2 +3 Number of offences
8.2.9 While the size of this sample is particularly small (# = 16), the results do indicate that a higher percent of defendants who were referred to the List but subsequently removed have re-offended than those who successfully completed the List. The data also indicates that a lower percent of unsuccessful participants committed no further offences in the six months after their referral to the MHDL than the successful List participants. Figure 6 below illustrates this comparison of re- offending rates (that is, number of offences committed post-participation) of successful participants and defendants who were removed from the MHDL.
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Figure 6: Comparison of number of offences committed post-participation in the MHDL by participants who successfully completed and those removed from the List
Number of offences committed post-participation
100 92.3 90
80
70
60 50 Successful on List 50 Removed from List 40
30 25
Percentage (%) of offenders Percentage 20 12.5 12.5 10 3.9 1.9 1.9 0 0 1 2 +3 Number of offences
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9 Further Results 9.1 Other Outcomes 9.1.1 As well as indicating a reduction in the re-offending rates of participants, the MHDL has produced a number of other positive outcomes for participants and stakeholders alike. These include: • Engaging mentally ill defendants in appropriate treatment • Addressing other criminogenic needs of participants • Decreasing the workload of many stakeholders, particularly in respect of ‘special hearings’ under s 15 of the Criminal Justice (Mental Impairment) Act 1999 .
9.2 Treatment 9.2.1 Of the 112 participants on the MHDL, 70% were referred to, and received treatment from, either Mental Health Service or Forensic Mental Health Services. 146 The remaining 30% received treatment from a private psychiatrist, private psychologist, GP or another government service provider.
Table 19: Service/Treatment Provision (successful participants) Service Provider # of Defendants Percent MHS / FMHS 79 70.5% Private Psychiatrist 13 11.6% GP 11 9.8% Private Psychologist 5 4.5% In-Patient Admission 1 0.9% Disability Services 1 0.9% Sexual Assault Support Services 1 0.9% N/A 1 0.9% Total 112 100%
9.2.2 For some participants, the MHDL has provided an opportunity to address previously undiagnosed mental health issues. Others feel that the List has allowed them to have the treatment they were receiving for their mental illness reassessed and changed where necessary. This may mean a change in medicine or a change in service provider. One case manager commented that the MHDL gave her client a chance to say that she was not happy with the treatment she was receiving and, with
146 However it should be noted that many of these participants were already known to these services 78
Mental Health Diversion List Evaluation Report the help of the FMHS team, she was able to assert herself and ‘…change quite drastically her treatment and go a different direction’.
9.2.3 For one participant, being involved in the MHDL resulted in her receiving proper care and follow up to her treatment, both of which she and her family did not believe she was receiving before. It has also meant she has someone to speak to if she has a problem with any part of her treatment.
9.2.4 Only one case study interviewee reported negative things about the health treatment he received while on the MHDL. This particular participant believes that he was being ‘…persecuted by people at Mental Health’ and was being involuntarily treated by Forensic Mental Health Services. He believes that his anti-psychotic medicine is causing him considerable harm and if he had not been on this medicine before he entered the List, he would have ‘…suffered directly as a result of being on the program’.
9.2.5 This view, however, was not shared by any other case study interviewee. The overwhelming response to the mental health care and treatment these participants received as a result of their involvement in the List was positive.
9.3 Other Criminogenic Needs 9.3.1 In addition to improving their mental health, a number of case study participants said that other areas of their life had improved significantly since they commenced the MHDL program. Some had been able to find (and retain) permanent, stable accommodation while others had improved their familial relationships. A few participants had re-engaged in work/employment or commenced studies at TAFE.
9.3.2 The stakeholders interviewed were slightly divided on whether participation in the MHDL helped defendants address their other criminogenic needs. Some believed that it did where the complainant was a family member or neighbour. In these situations, the relationship was often improved after the defendant entered the List and commenced treatment. Others, however, believed that addressing other criminogenic needs of participants, particularly issues like housing, was beyond the capacity of the MHDL.
9.3.3 There was some concern amongst stakeholders that if the court attempted to address other criminogenic needs of participants it might result in defendants being
79 Mental Health Diversion List Evaluation Report kept in the criminal justice system for disproportionate amounts of time. Using the criminal justice system to address such issues was also seen as ‘intrusive’ and outside the realm of the court’s responsibilities.
9.3.4 For some MHDL participants, being on the List gave them an opportunity to address their offending behaviour and accept responsibility for it. One participant commented on how, initially, she had been reluctant to enter the List because she felt she was ‘copping out’ of taking responsibility for her actions. However, her solicitor and the FMHCLO explained that participating in the List did not equate to absolving herself of all responsibility for her actions or pretending the offence never happened. Another participant said the List has helped her recognise that her behaviour was ‘wrong’ and she now feels remorse and guilt whereas she never had previously. 147
9.4 Workloads and ‘special hearings’ under s 15 of the Criminal Justice (Mental Impairment) Act 1999 9.4.1 Not one stakeholder interviewed believed that the MHDL had increased their workload. Some found that it had not been affected, while other said that because like matters were being streamlined into the one court list their workloads had actually decreased.
9.4.2 Avoiding fitness to stand trial issues, insanity issues and the need for special hearings under sections 15 and 16 of the Criminal Justice (Mental Impairment) Act 1999 is considered a major benefit of the List by a number of stakeholders. Under Part 2 of the Criminal Justice (Mental Impairment) Act 1999, a series of investigations and/or hearings are required to be conducted in order to determine a person’s fitness to stand trial. Sections 15 and 16 of the Criminal Justice (Mental Impairment) Act 1999 provide, inter alia :
15. Special hearings (1) A court must proceed to hold a special hearing if – (a) the court determines that the defendant is not likely to become fit to stand trial within 12 months; or (b) the defendant does not become fit to stand trial within 12 months after the determination referred to in section 14(2) . (2) The purpose of the special hearing is to determine whether, despite the unfitness of the defendant to stand trial, on the limited evidence available the defendant is not guilty of the offence.
147 This particular participant has a long criminal history of over 150 charges 80
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16. Procedures at special hearings (1) A special hearing is to be conducted so that the onus of proof and standard of proof are the same as in a trial of criminal proceedings and in other respects as nearly as possible as if it were a trial of criminal proceedings. (2) The fact that the person has been found to be unfit to stand trial is taken not to be an impediment to his or her representation. (3) Without limiting the generality of subsection (1) , at a special hearing – (a) the defendant is taken to have pleaded not guilty to the offence; and (b) the defendant's legal representative may exercise the defendant's rights to challenge jurors or the jury; and (c) the defendant may raise any defence that could be properly raised as if the special hearing were an ordinary trial of criminal proceedings; and (d) the defendant is entitled to give evidence.
9.4.3 Part 3 of the Criminal Justice (Mental Impairment) Act 1999 sets out the powers and procedure of the court for dealing with persons found not guilty by reason of insanity and section 16 of the Criminal Code Act 1924 defines the insanity defence. It states that a person cannot be held criminally responsible for an act or omission made by them when they are afflicted by a mental disease to the extent that they are rendered incapable of either understanding the nature of the said act or omission or understanding that it was one that they ought not do (see Appendix 2).
9.4.4 Hearings which consider these various issues are legally and administratively burdensome for the prosecution, defence and the court, require a large number of specialist reports to be ordered and often take a considerable number of hearing days to be resolved. The FMHCLO reported that they have received feedback from both MHS and private psychiatrists/psychologists that their workload in respect of these matters has decreased since the inception of the List. To some extent this is borne out by some of the data available to the court. While the court does not collect data on the number of special hearings involving fitness to plea and insanity issues carried out under s 15 of the Criminal Justice (Mental Impairment) Act 1999 per se , it does record cases that were finalised by a finding of “Not Guilty by reason of Insanity”. Most cases that require s 15 special hearings usually finalise by such a finding being reached. Since the introduction of the MHDL, only 7 cases that required s 15 special hearings concerning insanity and fitness to plea issues had an outcome of “Not Guilty by reason of Insanity”. By contrast, in the two years prior to the introduction of the List the court finalised 15 cases that fell into the same category. In other words, there was over a fifty per cent reduction in matters that were finalised by a “Not Guilty by reason of Insanity” outcome. While there is no data to suggest that
81 Mental Health Diversion List Evaluation Report the introduction of the List caused a reduction in the court hearing s 15 matters, it is likely that the reduction in s 15 special hearings has benefited the court by saving it time and resources, and has benefited stakeholders, such as prosecution authorities, defence counsel and mental health authorities, by relieving them of the onerous legal requirements that accompany cases involving a plea of insanity.
Table 20: Number of matters found not guilty by reason of Insanity, Magistrates Court, 2003-2008
Years # of matters found not guilty Percentage
by reason of insanity Difference
2003/2004 15
2005/2006 15 0%
2007/2008 7 53.3%
Total 37
Figure 7: Comparison of number of matters found not guilty by reason of insanity, Magistrates Court, 2003-2008
Number of matters found not guilty by reason of insanity
16 15 15 14 12 10 8 7 6 # of matters # 4 2 0 2003/2004 2005/2006 2007/2008 Year
9.4.5 For defence counsel, the MHDL not only reduces the number of reports they have to source, it also avoids the delays and frustrations normally associated with disputes about the mental state of clients and s15 special hearings. From a prosecution point of view, avoiding s15 hearings means that more senior prosecutors do not need to be involved in the whole process.
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10 Conclusion 10.1.1 Overall the MHDL appears to be meeting its intended objectives of offering a more therapeutic approach to the criminal justice system for mentally ill defendants and reducing the re-offending rates of such defendants. The analysis of the available quantitative data indicates that offending rates of participants are considerably lower than their offending rates before participation. The data also indicates that a lower percentage of participants who successfully complete the MHDL re-offend in the six months after their matter is finalised than those who are removed from the List. While these results suggest that the MHDL is helping to reduce the recidivism rate of participants it needs to be recognised that the methodology confronted challenges with respect to sample size and that the statistical significance of the data could not be established.
10.1.2 The in-depth analysis of the operation of the MHDL indicates that all key- players are successfully adopting a therapeutic approach. This means that matters are generally dealt with in a more collaborative and problem solving manner. Anecdotally, this is producing greater satisfaction among participants, both in terms of the processes and outcomes of the List.
10.1.3 Despite the achievements of the MHDL, there are a number of procedural and operational issues that should be addressed and amended if the initiative is to continue to operate, either as a second phase pilot program or as a permanent feature of the Magistrates Court. The number of List sittings per month should be increased to two and the use of pre-court meetings formalised so that the MHDL can operate at an optimal level, both in terms of capacity and collaboration between all relevant stakeholders. Also, the current data collection processes need to be improved. This will require consideration by both the Department of Justice and the Department of Health and Human Services.
10.1.4 Finally, information gained from a number of sources, including care and service providers and the general public, indicate that the information resources about the MHDL are insufficient. If the initiative is to continue, both paper-based and electronic information should be up-dated and made more readily available.
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Cosden M, Ellens J, Schnell J and Yamini-Diouf Y, ‘Evaluation of Santa Barbara County Mental Health Treatment Court with Intensive Case Management’ (2004) (http://consensusproject.org/downloads/exec.summary.santa.barbara.evaluation )
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Day A and Howells K, ‘Psychological Treatments for Rehabilitating Offenders: Evidence-based Practice Comes of Age’ (2002) Australian Psychologist 39-47
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Department of Health and Human Services, ‘About Mental Illness’ (www.dhhs.tas.gov.au/health_and_wellbeing/mental_health/related_topics/about_me ntal_illness )
Freiberg A, ‘Problem-oriented Courts: Innovative Solutions to Intractable Problems?’ (July 2001) AIJA Magistrates Conference ( www.aija.org.au/mag01/Freiberg.pdf )
Freiberg A, ‘Therapeutic Jurisprudence in Australia: Paradigm Shift or Pragmatic Incrementalism?’ (2003) 20 Law in Context 6-23
Gotsis T and Donnelly H, ‘Diverting Mentally Disordered Offenders in the NSW Local Court’ (March 2008) Judicial Commission of New South Wales (www.judcom.nsw.gov.au/publications/research-monographs-1/monograph31 /monograph31.pdf )
Graham H, ‘A Practitioner’s Guide to Mental Health Services in Southern Tasmania’ (October 2008) (www.utas.edu.au/sociology/CRU/Practitioners_Guide_Mental_ Health_Services_Sthn_Tas.pdf )
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Herinckx H, Swart S, Ama S and Knitson J, ‘The Clark County Mentally Ill Re-Arrest Prevention Program Final Evaluation’ (2003) ( www.rri.pdx.edu/pdfMIRAP_Final.pdf )
King M, ‘Therapeutic Jurisprudence in Australia: New Directions in Courts, Legal Practice, Research and Legal Education’ (2006) 15 JJA 129-141
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‘Mental Health Diversion List Procedural Manual’ (April 2007) (www.magistratescourt.tas.gov.au/_data/assets/pdf_file/0008/78740/Mental_Health_ Diversion_List_Procedural _Manual_-_May_2008-_ver1.1.pdf )
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Appendix 1
Mental Health Act 1996 (No. 31 of 1996)
4. Meaning of "mental illness"
(1) A mental illness is a mental condition resulting in –
(a) serious distortion of perception or thought; or
(b) serious impairment or disturbance of the capacity for rational thought; or
(c) serious mood disorder; or
(d) involuntary behaviour or serious impairment of the capacity to control behaviour.
(2) A diagnosis of mental illness may not be based solely on –
(a) antisocial behaviour; or
(b) intellectual or behavioural nonconformity; or
(c) intellectual disability; or
(d) intoxication by reason of alcohol or a drug.
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Appendix 2
Criminal Code Act 1924 (No. 69 of 1924)
16. Insanity
(1) A person is not criminally responsible for an act done or an omission made by him –
(a) when afflicted with mental disease to such an extent as to render him incapable of –
(i) understanding the physical character of such act or omission; or
(ii) knowing that such act or omission was one which he ought not to do or make; or
(b) when such act or omission was done or made under an impulse which, by reason of mental disease, he was in substance deprived of any power to resist.
(2) The fact that a person was, at the time at which he is alleged to have done an act or made an omission, incapable of controlling his conduct generally, is relevant to the question whether he did such act or made such omission under an impulse which by reason of mental disease he was in substance deprived of any power to resist.
(3) A person whose mind at the time of his doing an act or making an omission is affected by a delusion on some specific matter, but who is not otherwise exempted from criminal responsibility under the foregoing provisions of this section, is criminally responsible for the act or omission to the same extent as if the fact which he was induced by such delusion to believe to exist really existed.
(4) For the purpose of this section the term "mental disease" includes natural imbecility.
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Appendix 3
Bail Conditions
1 Must report to the court liaison officer of forensic mental health services (FMHS) as directed by an officer of that service.
2 Must obey reasonable directions of the court liaison officer of FMHS or an officer of the mental health services (MHS).
3 Must attend all appointments as directed by the court liaison officer of FMHS or an officer of the MHS.
4 Must attend all drug and alcohol counselling as directed by the court liaison officer or an officer of the MHS.
5 Must submit to drug and alcohol testing as directed by the court liaison officer or an officer of the MHS.
6 Must take medication as prescribed.
7 Must reside at…
8 Must not drink alcohol.
9 Must not take illicit or illegal drugs.
10 Must attend rehabilitation programs as directed by the court liaison officer of FMHS or an officer of the MHS.
11 Must not associate with…
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Appendix 4
Sentencing Act 1997 (No. 59 of 1997)
7. Sentencing orders
A court that finds a person guilty of an offence may, in accordance with this Act and subject to any enactment relating specifically to the offence –
(a) record a conviction and order that the offender serve a term of imprisonment; or
(ab) if the court is constituted by a magistrate, record a conviction and make a drug treatment order under Part 3A in respect of the offender; or
(b) record a conviction and order that the offender serve a term of imprisonment that is wholly or partly suspended; or
(c) record a conviction and, if the offender has attained the age of 18 years and the offence is punishable by imprisonment, make a community service order in respect of the offender; or
(d) with or without recording a conviction, make a probation order in respect of the offender if the offender has attained the age of 18 years; or
(e) record a conviction and order the offender to pay a fine; or
(ea) in the case of a family violence offence, with or without recording a conviction, make a rehabilitation program order; or
(f) with or without recording a conviction, adjourn the proceedings for a period not exceeding 60 months and, on the offender giving an undertaking with conditions attached, order the release of the offender; or
(g) record a conviction and order the discharge of the offender; or
(h) without recording a conviction, order the dismissal of the charge for the offence; or
(i) impose any other sentence or make any order, or any combination of orders, that the court is authorised to impose or make by this Act or any other enactment.
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Appendix 5
Mental Health Diversion List Evaluation Survey
Please answer the following questions by marking the circle that corresponds with your response. Mark the 'No Answer' column if you have no opinion or do not understand the question o o N Agree Agree Agree Agree Neutral Answer Strongly Strongly Disagree Disagree
1 I am aware of the Mental Health Diversion O O O O O O List ( MHDL ) program
2 I have a good understanding of the O O O O O O functions of the MHDL
3 The majority of our clients involved in the O O O O O O MHDL have successfully completed the MHDL program
4 The majority of our clients involved in the O O O O O O MHDL have had a positive experience while on the MHDL program
5 The MHDL is serving the population most in O O O O O O need of it
6 The MHDL helps to improve the lives of O O O O O O participants
7 The MHDL helps to improve the lives of O O O O O O participants’ families
8 The MHDL helps to improve co-ordination O O O O O O between justice agencies (such as the courts) and health service providers
9 The MHDL does not help to prevent O O O O O O participants from re-offending
10 Lack of services (in the community) is a O O O O O O major impediment to the operation of the MHDL
11 There is an adequate number of treatment O O O O O O options available for MHDL participants
12 Lack of coordination between services is a O O O O O O major impediment to the operation of the MHDL
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No No Agree Agree Agree Agree Neutral Answer Strongly Strongly Disagree Disagree
13 The MHDL has not helped to address the O O O O O O issues our clients face
14 The MHDL delivers just sentences for O O O O O O participants
15 The MHDL is of benefit to the general O O O O O O community
16 The information resources currently O O O O O O available on the MHDL is sufficient
17 What is the name of your service provider/ organisation? …………………………………………………………………………………………… ………….
18 What is the address of your service provider/ organisation? …………………………………………………………………………………………… ………….
19 Approximately how many of your clients have participated in the MHDL?
○ Past …………………………….
○ Present ……………………………..
Please indicate how you became aware of 20 the MHDL ○ Internet ○ Television ○ Newspaper ○ Word of Mouth ○ Employment ○ Other (please specify)
……………………………………………………………………… 21 What are the positive aspects of the MHDL
22 What are the negative aspects of the MHDL
23 Other Comments
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Appendix 8 – Offender Case Study Summaries
AARON
‘Aaron’ is a 43 year old male who is currently participating in the MHDL. At the time of the interview, he had been on the List for approximately 3 ½ months and was likely to remain on the list for a further 2 ½ months.
Aaron is charged with a number of firearm and property offences, as well as one count of stalking. He has some minor prior offences, which mostly relate to traffic and road rule violations and apart from a drink driving charge some years ago, has not had to attend court before now.
For Aaron, one of the biggest benefits of being on the MHDL is that it has given him the opportunity to accept, and address, his delusional disorder. Before participating on the List, he had kept his mental health issues and problems ‘all bottled up’, which caused him to lose control and ‘explode’.
Aaron commented that he does find the language used in the court to be a bit too technical. He said that he can understand about 70% of what is discussed and what he does not understand is explained to him in ‘layman’s terms’ at the end of the court session by his lawyer. He said that he likes this as he is often a bit tense while in the court room but able to ‘take things in a bit more’ when he comes out.
For Aaron, the most stressful part about participating in the MHDL is actually the night before a court appearance, when he worries about what will happen in court the next day. However, once he is actually in court, ‘…it’s not too bad’. Aaron finds that having the magistrate talk directly to him and give him encouragement about his progress helps him to feel a bit more relaxed.
Since being on the List, Aaron has been able to continue his work as a support worker and has started to re-engage in a number of social activities.
BRIAN
‘Brian’ is a 38 year old man who recently successfully completed the Mental Health Diversion List. Brian has bi-polar disorder and his offences relate to a time when
95 Mental Health Diversion List Evaluation Report he was very manic. He was charged with a number of counts of making off without payment and obtaining goods by false pretences. He was also charged with driving while exceeding speed and alcohol limits and threatening a police officer.
When he first appeared in the Magistrates Court, Brian was in a ‘very, very manic state’ and was not aware of his surroundings. He was remanded in custody and shortly after transferred to the Department of Psychiatric Medicine for six weeks. It was here that Brian had a meeting with one of the FMHCLO, who made him aware of the MHDL program. By this time he was being properly medicated and had ‘calmed down…was more lucid…and functioning on a fairly alert level’. This meant he was able to make ‘reasonable assessments and judgements’ and he decided that participating on the List was the option he wanted to pursue.
Brian said that he was not really aware of whether the level of language used in the court was any different to that used in the regular court lists as he had study Law for 18 months at University and therefore was used to legal jargon. He also said that the Magistrate did not talk directly to him until his last appearance, however this did not worry him as he trusted his lawyer and the FMHCLO to represent his interests.
According to Brian, there were a number of benefits of participating in the MHDL. Some of these relate to not having a conviction recorded, which means that potential job opportunities and future travel plans are not adversely affected. Others relate to allowing him the time to sort out his mental health issues and stabilise his medication. This meant, for Brian, he was fully aware of the process that was happening, rather than being rushed through the courts and left wondering what was going on.
For Brian, the most significant improvement to his life since being on the MHDL has been that everything has become ‘a bit more normal’ and he feels he is now on a ‘more even keel’. Brian has commenced studying an introductory viticulture course at TAFE. He hopes to gain a diploma in this area and eventually work in the vineyard business.
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CAROLINE
‘Caroline’ was one of the first participants on the MHDL. She successfully completed the List in July 2007.
Caroline was charged with one count of stealing and has no prior convictions or charges. She was extremely embarrassed about her charge and court appearances and says that she cannot offer any reason or explanation for her behaviour. Caroline has been diagnosed with psychosis and sees a private psychologist for this. At the time of her offence, she was particularly unwell and subsequently spent a considerable amount of time in hospital.
Caroline was referred to the MHDL at a later stage in her court proceedings and was only required to make one appearance on the List. Because of this, she did not have the opportunity to witness how the List works in any detail. However, from what she did observe, she did not notice any qualitative difference to how a regular court operates (Caroline had observed other Magistrates Court proceedings as part of her job as a senior public servant). At first, Caroline was concerned that by being on the MHDL she was somehow absolving herself of all responsibility for her actions – something that she definitely did not want to do. It was only after the FMHCLO explained the premise of the List to her in detail that she agreed to participate.
For Caroline, there were two significant benefits of participating on the MHDL. First was the fact that she had no conviction recorded (in fact, the prosecution tendered no evidence and the matter was dropped). This has enabled Caroline to continue with the various voluntary social and community roles that she pursues. It also meant that she will not be restricted in any way in terms of international travel.
The other benefit for Caroline was being able to confront the fact that she had a mental health problem and needed to seek treatment in a more ‘diligent’ manner. She believes that if she did not participate in the MHDL she would not have admitted the incident to anyone else, including her psychiatrist, and would have instead just pretended that she did not have a serious mental health problem or that this was the cause of her abnormal behaviour.
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DARREN
‘Darren’ is a 27 year old male who successfully completed the MHDL one year ago. He has been diagnosed with schizophrenia but does not believe that he has a mental illness. He feels that he is persecuted by the staff at Mental Health Services and is currently being involuntarily treated by the Forensic Mental Health team. Darren is very sceptical of the psychiatric profession and the benefits of psychiatric medicine.
Darren also believes that he was unfairly persecuted by police and should not have had charges bought against him as he ‘…didn’t actually hurt anybody and never committed a real crime.’
For Darren, the single motivation for participating in the MHDL was to avoid getting a conviction. For him, the choice was simply the ‘lesser of two evils’. When asked whether the approach of the MHDL helped him to feel more relaxed, Darren commented that the way he felt during the proceedings was ‘irrelevant’. He also could not see how being on the List could be a positive experience for anyone or produce any positive results.
EMMA
‘Emma’ is a 31 year old female who was charged with two traffic offences. She has no prior convictions. Emma has been diagnosed with a personality disorder and is treated by a private psychiatrist, who suggested she participate in the MHDL.
Emma decided to go onto the MHDL because she was going through a difficult time at the time of her court appearances and thought that it would be a more supportive way to go through the criminal justice system. Emma said that, during her court appearances, she was quite ‘worked up’ and the magistrate accommodated this by allowing her partner to sit with her at the bar table.
Emma found the support of the FMHCLO to be especially good. When asked whether it was difficult having to come to court for reviews, Emma said this did not concern her as she would ‘…prefer to go in three times and have the people there that I had there and the understanding that I had as opposed to going a regular courtroom and being just sat in the middle of it and dealt with straight away.’
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Emma believes that if she had gone through the regular court system, she would have received a greater penalty and had her licence suspended for much longer. She feels this would have caused her to have ‘gone down hill heaps’ and would have prevented her from caring for her son properly.
FRED
‘Fred’ is a 40 year old schizophrenic male. He has an extensive criminal history and has been charged with over 200 offences in the last 17 years. He also has a long history of drug use and has spent much of the last 10 -15 years either living in different institutions or various forms of unstable housing.
Fred first appeared in, and successfully completed, the MHDL in 2007. He found out about the List through staff at FMHS and agreed to participate in it because he thought it would allow him to be ‘understood’ in court and give mentally ill defendants like him a chance to be ‘heard properly’. Fred is currently appearing in the MHDL for a second time on charges that date back to 2005. He is very pleased that the magistrate recognised him from his first appearance in the MHDL and insisted that the matter be put over a second time, despite some resistance by the (Commonwealth) prosecutor.
For Fred, the best features of the MHDL are the bail conditions and the regular reviews, which he takes very seriously. These give him a ‘goal to head for’ and also provided him with the incentive to ‘keep it straight’. Being in regular contact with FMHS has also meant that he has always got ‘someone to talk to’ when he has any problems and he no longer ‘bottles it all up’.
According to Fred, being on the MHDL has helped him to lead a more normal life. He has managed to find stable accommodation for the first time in over 10 years and has not had any offences recorded against his name since his first appearance. He hopes that at the end of his second time on the List, the Magistrate can see that he was ‘not in a well state’ when he committed the offences and that he gets another good behaviour bond or suspended sentence.
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GINA
‘Gina’ is 44 years old and has been diagnosed as having a personality disorder. She has a long criminal history and has been charged with over 170 offences. Gina first participated in the MHDL in 2007 and has recently been referred to the List for a second time after being charged with a minor stealing offence. She said she is pleased she has been allowed to participate in the List a second time for this ‘little snag’ and hopes that her matter can be dealt with in just two appearances.
Although always finding court somewhat stressful and difficult, Gina says that she finds the MHDL to be a more comfortable environment than regular court lists. She also believes that mentally ill defendants have more of a chance of being dealt with fairly in the MHDL.
Since her first appearance on the List, Gina has managed to find a house and has increased the amount of contact she has with her children. When asked what areas of her life she managed to make the biggest improvements in, Gina simply replied, ‘I’ve improved’. She also said that before being on the List she never felt guilty or remorseful for her offending behaviour, however she is now able to appreciate that her behaviour was ‘wrong’.
According to her case worker, who was also present at the interview, the MHDL has also enabled Gina to express her displeasure and dissatisfaction with her old treatment plan and, with the help of the FMHCLO, negotiate some major changes in this area of her life. Gina said that she hopes other MHDL participants realise that they can contact the FMHCLO if something is wrong or if they need to change something that is connected to their bail conditions, such as their treatment regimes.
Gina’s case worker said she hoped the MHDL would continue because, from her perspective, it acts as a successful catalyst to get clients into treatment and engaging with a number of different services. She also said that it was encouraging to see these clients make these major changes while knowing that they are going to receive some recognition for their hard work at the end of their court case.
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Mental Health Diversion List Evaluation Report
ISABEL ‘Isabel’ is a 45 year old mother of four. She has bi-polar disorder which, when unmanaged, causes her to be abusive towards others, particularly her family. She had been charged with a number of breaches of restraint orders taken out by her children and mother.
Isabel was referred to the MHDL by a magistrate. Despite being actively involved in a number of mental health forums, neither Isabel nor her mother (who attended the interview with her) had previously heard of the MHDL. This frustrated them as they believed that considerable pain and anguish that was caused by repeat appearances in the normal court lists could have been avoided if her matters had been referred to the MHDL earlier.
According to both women, Isabel has had a long history of not receiving proper care and treatment for her mental illness. On a number of occasions she was refused admission to the Department of Psychiatric Medicine at the hospital or was released inappropriately and would go home and ‘torment the daylights out of her older two children’. Since being on the List, Isabel has received proper care and follow-up. She has had her medication reassessed and changed. She is finding her memory is a lot better and she has the motivation to get out of bed in the mornings. Her mother commented that Isabel is generally happier because she now knows what is happening. She has also been able to repair her relationship with her children and other family members.
For Isabel, being in the MHDL with similarly situated people meant that she felt more at ease when in court and was not worried about what the magistrate was going to say to her. Both Isabel and her mother also feel that the FMHCLO was very understanding and compassionate and that the MHDL provided her with someone to talk to if she had a problem.
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