MENTAL HEALTH DIVERSION LIST EVALUATION REPORT May 2009 Esther Newitt Victor Stojcevski 1 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. 1 Mental Health Diversion List Evaluation Report 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 2 Mental Health Diversion List Evaluation Report 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 3 Mental Health Diversion List Evaluation Report 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) 4 Mental Health Diversion List Evaluation Report 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. 5 Mental Health Diversion List Evaluation Report 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 .