07 September 2012


The NSW Law Reform Commission has released its 462 page report [PDF] on People with cognitive and mental health impairments in the criminal justice system: Diversion. A second report will deal with issues of criminal responsibility, fitness to plead, the management of forensic patients and procedures relating to forensic samples.
This report is a comprehensive look at the opportunities to enhance diversion at all stages of the criminal justice system for people with cognitive and mental health impairments.  [It] is timely in that it coincides with the establishment of the NSW Mental Health Commission and the National Mental Health Commission. It is also contemporaneous with a number of other reviews, including the current review of the Mental Health Act 2007 (NSW) by the NSW Ministry of Health. 
The authors comment that
There are a number of over-arching issues that are important to this report. There is strong evidence  that people with cognitive and mental health impairments are over-represented throughout the criminal justice system. But the great majority of people with a cognitive and/or mental health impairment do not offend. The higher rate of offending does not arise from any simple relationship between impairment and crime, but from impairment together with a multiplicity of other factors, such as disrupted family backgrounds, family violence, abuse, misuse of drugs and alcohol, and unstable housing. 
Diversion of people with cognitive and mental health impairments generally involves them engaging with a range of providers of treatment and services that have a rehabilitative focus. The relationship between the criminal justice system (police and courts) and the service sector is crucial to effective diversion. Both are complex systems. Effective diversion relies on connecting offenders with the right services and maintaining that connection when problems arise. Understanding and communication between the criminal justice system and services is crucial for diversion to work well. Significant challenges include: the great multiplicity of agencies providing services; different disciplinary understandings; different perspectives on key issues; gaps in the availability of services; and problems of integrating service delivery for people whose needs are complex.
They characterise diversion as including:
  • practices that seek to minimise contact with the criminal justice system, such as cautions, conferencing and other types of pre-court diversion 
  • measures by courts to refer defendants to treatment and/or services that aim to rehabilitate the offender and prevent further offending, and
  •  “problem solving courts” that combine referral to rehabilitative services with ongoing court monitoring of the defendant’s progress. 
They go on to consider the advantages and disadvantages of diversion.
Diversion can benefit both the offender and the wider community by addressing the causes of offending, and thus reducing offending behaviour. It can reduce involvement in the criminal justice system which may be particularly detrimental for people with cognitive and mental health impairments. There may be potential cost savings associated with diversion, for example reduction in costs of incarceration or hospital readmissions. Diversion may however be unsuitable for serious offences. It may net-widen. A person may make inappropriate admissions to access diversion. The requirement of diversion may be more burdensome than the consequences of being dealt with according to law. 
The Commission's assessment is that "diversion can be an effective means of reducing reoffending and producing better outcomes for people with cognitive and mental health impairments [but] diversionary schemes need to be carefully designed to avoid some of the potential drawbacks".

It notes that
 On the basis of available data, the representation of people with cognitive and mental health impairments in the criminal justice system is disproportionately high. This is true for police contact and for Local Court proceedings, though the data is indicative only. It is also true for people in custody, where we have better data. For example the rate of mental health impairment in prisoners appears to be more than triple the rate in the general population, although there can be significant variation depending on the mental health impairments concerned. From available data, there also appears to be an over-representation of people with cognitive impairments in custody. The level of over-representation of young people with a mental health impairment or a cognitive impairment in the juvenile justice centres is particularly high.
However, the paucity of data means the exact scale of over-representation is unknown. This lack of available, comprehensive and consistent data regarding the representation of, and outcomes for, people with cognitive and mental health impairments in the criminal justice system has made it very difficult for us to quantify the present deficiencies, in order to evaluate the potential impact of our recommendations.
We recommend that a working group should develop a strategy to ensure improved data collection and analysis, so that in future there will be a better foundation on which to make policy and to estimate the cost and impact of proposed changes
The report indicates that the definitions of cognitive and mental health impairment used in the criminal law are "inconsistent and outdated", so that the law "lacks a consistent and clear approach to defining cognitive and mental health impairment", resulting in"unnecessary confusion and complexity". The Commission  recommends two separate definitions of cognitive impairment and of mental health impairment, to be inclusd in the diversionary provisions of s 32 and s 33 of the Mental Health (Forensic Provisions) Act 1990 (NSW) - the MHFPA  and in the context of bail and pre-court diversion .

In discussing bail the Commission notes that the Bail Act 1978 (NSW) provides for the use of bail as a diversionary tool under s 36A and comments that  s 32 of the MHFPA generally provides a sufficient framework. It recommends that s 33 be amended to make it clear that, if a person is taken to a mental health facility for assessment, a bail determination is not to be made unless the person is brought back to court following that assessment. It goes on to comment that
Unless people with cognitive and mental health impairments are first identified, and assessed, the criminal justice system cannot respond appropriately to them. NSW presently has an assessment service for people with mental health impairments, the Statewide Community and Court Liaison Service (SCCLS.) However this service is available in only 20 of 148 Local Court locations. We recommend the expansion of the SCCLS or other services that provide for identification, assessment and advice: to make them available state-wide and to make assessment services available in relation to defendants with cognitive impairments
Assessment and support services depend on referral. The people who identify and refer are police, lawyers, magistrates, court staff and others. These people need sufficient information to allow them to be effective referral agents. We recommend that the Department of Attorney General and Justice (DAGJ), in consultation with Justice Health, develop and distribute information that supports early identification of people with cognitive and mental health impairments, and referral where necessary.
Research has identified the key role played by Legal Aid lawyers in representing people with cognitive and mental health impairments. We therefore recommend the provision of particular training and supports for Legal Aid lawyers, to assist them to identify and refer clients with cognitive and mental health impairments.
In relation to  case management the report comments that
 Where the defendant is to be diverted to services that will deal with the causes of offending, those services must be identified and the defendant connected with them effectively. Problems arise frequently in making and maintaining connections with services, especially for those with complex needs. When problems arise a case manager who can resolve difficulties needs to be available. Presently, despite “treatment plans”, defendants do not connect with services, cannot find appropriate services, encounter problems and disengage. The current system for reporting noncompliance with treatment plans is ineffective. ... If a whole-of-government perspective is taken, we consider it is likely that the costs of this expansion will be offset by a reduction in offending, and other benefits.
In discussing crisis response for mentally ill persons the report indicates thsat police are empowered to take a person who appears to be mentally ill or mentally disturbed to a mental health facility under s 22 of the Mental Health Act 2007 (NSW) - those referrals account for 23% of all requested admissions to mental health facilities but 26%  are not admitted.
There are many reasons for this, including that the person does not fit the criteria for involuntary admission. However, numerous stakeholders expressed concerns that other reasons cause refusal to admit, such as the lack of available beds, or inability or unwillingness to deal with violent people. This issue also arises ... in relation to referrals by courts to mental health facilities.  We recommend that when a person is referred to a mental health facility under s 22 and is not admitted, police should be able to refer the decision to the Mental Health Review Tribunal for review, in accordance with proposals already under consideration by government. This option may not be used frequently, but will be available to police in cases of particular difficulty. Stakeholders also identified significant problems concerning the relationship between the NSW Police Force, NSW Health and the Ambulance Service of NSW. An agreement regarding roles and responsibilities has been subject to renegotiation for nearly five years. We recommend that the re-negotiation of the memorandum of understanding (MOU) be completed within 6 months, and that the NSW Mental Health Commission should monitor and report on the progress of finalising the MOU
With pre-court diversion ("particularly valuable for people with cognitive and mental health impairments as it minimises their contact with the criminal justice system") the Commission recommends -
 a statutory scheme providing police with a clear power to discontinue proceedings in appropriate cases in favour of referral to services. In our view, diversion should be available pre-and post charge, should not require admissions, should be available more than once, should not take the place of warnings and cautions and should be supported by procedures developed in consultation between key stakeholders. Police need support in identifying and assessing people with cognitive and mental health impairments. Where they divert a person, that person may already be in receipt of services or there may be an obvious framework for diversion. However, in other cases police need a service to which they can refer defendants to be assessed and a diversion plan developed.  ... The high level of police involvement with people with cognitive and mental health impairments justifies an increased investment in training, and we recommend that the NSW Police Force increase the training of Mental Health Intervention Team officers and, further, ensure that all police officers have received training that covers working with people with cognitive and mental health impairments and the operation of pre-court diversion
 Regarding diversion in the Local Court  the report notes that
NSW has “mainstreamed” its diversionary powers for people with cognitive and mental health impairment, making them available to all magistrates in the Local and Children’s Courts. Section 32 of the MHFPA is the main diversionary provision. We recommend a number of reforms to broaden the section’s scope and improve its operation.
The terms used to describe cognitive and mental health impairments in s 32 are now outdated and we recommend that the new definitions  be incorporated into s 32. This will extend the scope of the section to the full range of people with cognitive and mental health impairments. The current section gives no guidance to a court in deciding whether to divert. We recommend that s 32 include a non-exhaustive list of factors relevant to a decision to divert. Our intention is that courts should be prompted to consider relevant matters, but that their discretion should not be unduly fettered. A number of problems have been identified with s 32. First, it is under-used: about 1% of cases in the Local and Children’s Court are dealt with under s 32. Section 32 involves submitting a treatment plan. The challenges of producing a proper plan for defendants who have multiple diagnoses and complex needs are considerable and involve knowledge of the service sector. But this task is carried out by lawyers who usually have no expertise in the service sectors or in the requirements of a satisfactory plan. In addition, orders are presently limited to 6 months, and some stakeholders believe this is too short to be effective. The provisions relating to breach are ineffective and non-compliance is very rarely reported to the court. We heard from some stakeholders that these problems are barriers to diversion.
We make a number of recommendations in response to these problems. We have recommended in Chapter 7 that courts be provided with support to assist with assessment and case management of defendants, and to report on compliance with s 32 orders. These supports are central to the successful operation of diversion. 0.39 We recommend amendment of s 32 to increase and clarify the diversionary options available.
In discussing those options the Commission states that they are - 
  • Option 1: discharge the defendant unconditionally. This may be appropriate where the offending is not serious and the defendant is not likely to reoffend. 
  • Option 2: discharge the defendant on the basis that a diversion plan is in place. This option may be appropriate if the court is satisfied the defendant is motivated to engage with services. 
  • Option 3: adjourn the proceedings with a view to later discharge, on condition that the defendant undertake a diversion plan and report to the court in relation to his or her progress in complying with the plan. This option provides for court monitoring of compliance with diversion. Such monitoring may be minimal and simply require a report back to court at the end of the order. Alternatively it may respond to key milestones in the plan. In other cases it may involve more intensive judicial monitoring through regular reports to the court. 
  • Option 4: where the defendant meets the eligibility criteria, which include imminent risk of imprisonment, the court may refer the defendant to the specialist Court Referral for Integrated Service Provision (CRISP) list.
It recommends removal of the power under s 32 to discharge into the care of a responsible person, as  the provision is very rarely used, the role of a responsible person is ill defined, and service providers and family members are unwilling to take on the role.
In our view, a diversion plan could incorporate care responsibilities, where available and appropriate.
Diversion plans must set out a program of treatment and/or engagement with services and/or other activities. The plan must address those matters that appear to give rise, directly or indirectly, to offending behaviour. Depending on the individual, these may include services as diverse as psychiatric treatment, housing, counselling, social supports, drug programs, and educational activities. Diversion plans may be brief and simple documents in appropriate cases.
Where reporting to the court is required under option 3, a responsible reporter must be nominated. Where the CREDIT program is available, it will report to the court. In other cases the role may be taken on by a service provider, or a legal representative.
We recommend that courts have powers to amend plans during their currency, and the power to terminate early. On completion, the court may discharge the person or deal with the person according to law. We also recommend that the court should be able to extend the length of a diversion plan beyond 6 months for up to 12 months.
In discussing diversion in the Local Court the report notes that section 33 of the MHFPA (designed for people who appear in court who are acutely mentally ill) provides magistrates with the power to refer a mentally ill person to a mental health facility for assessment. ("A mentally ill person is someone who is suffering from a mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of that person is necessary whether for the person’s own protection from serious harm or the protection of others from serious harm.") Section 33  is used infrequently, withis a high rate of return to court. It is , and there may be limited numbers of such people.
There is presently a difference between the power of the magistrate to refer, which is confined to those who are mentally ill persons, and the authority of the mental health facility to admit, which extends to mentally ill persons and mentally disordered persons. A mentally disordered person is a person who do not have a mental illness, but whose behaviour, for the time being, is so irrational as to justify a conclusion, on reasonable grounds, that temporary care, treatment or control is necessary for the person’s own protection, or the protection of others, from serious harm. We recommend that courts should be able to refer for assessment those people who appear to be either mentally ill persons or mentally disordered persons
There is some confusion among stakeholders as to whether the person who is referred to a mental health facility can come back to court to be dealt with and, if so, in what circumstances. We therefore recommend amending s 33 to make it clear that it authorises both a final order or an interlocutory order, at the discretion of the court
We also recommended that the option of discharging the defendant into the care of a responsible person be repealed. One of the major problems reported to us with s 33 is that courts refer people who appear to them to be mentally ill persons to mental health facilities, but they are assessed as not eligible for admission and are returned to court (or discharged onto the streets). In some cases, when the person is assessed by a psychiatrist, they will not fit the definition of “mentally ill person” and will not require hospitalisation. However stakeholders told us that there are other cases where defendants are not admitted, despite being referred on the basis of clinical advice, or cases where defendants were repeatedly taken back and forth between court and a mental health facility in a state of acute ill health until they are ultimately admitted. Stakeholders suggested that the reasons for not admitting were sometimes related to resourcing problems. Stakeholders also expressed concern that some staff at mental health facilities believe that police or prisons are more appropriate to manage defendants who may be violent. To deal with this problem we propose that when a defendant is not admitted, the mental health facility must provide a short report to the court and that a court should be able to refer a refusal to admit to the Mental Health Review Tribunal for review.
Finally, we recommend that the interlocutory power under s 33 should be available to the Local Court in indictable matters
The Commission   notes that mental health courts or specialist lists have either established or proposed in Queensland, South Australia, Tasmania, Western Australia and Victoria. It considers that there is a strong case for the introduction of a specialist list in NSW to supplement our enhancements to s 32.
There is a great deal of stakeholder support (though not unanimous), and there is good evidence that such an approach can provide substantial benefits, including the reduction of reoffending. Although our recommendations in relation to s 32 will provide suitable diversionary options for many cases, there is a group of defendants in relation to whom a specialist list appears to be the appropriate response. We have given the list a name that describes what it does – Court Referral for Integrated Service Provision (CRISP). This list would operate in the Local and District Courts.
 A defendant should be eligible for the list if he or she:
  • has a cognitive or mental health impairment 
  • faces a serious prospect of imprisonment 
  • is not contesting the facts that form the basis of the alleged offence, and 
  •  has a CRISP list geographically accessible. 
Offences that are “indictable only” would be excluded from the list. In cases that are indictable triable summarily there would remain a discretion for the case to be rejected as not appropriate for the list. The list would operate in the manner of a problem solving court.
It would be informal and not be bound by the rules of evidence. When a defendant is admitted to the list a diversion plan would be prepared, and the defendant’s engagement with services monitored. The CRISP team would deal with any problems. The court would approve the diversion plan and any major changes to it. The defendant would report regularly to court. If the defendant does not comply with the plan, the normal response of the court would be to provide positive reinforcement to encourage compliance. The plan may be amended, for example to increase case management. Ultimately however, persistent non-compliance would mean termination of the defendant from the list. At this point the court would deal with the defendant according to law, either in the list or by transferring the case to the referring court.
Successful participation in the list will not entitle the defendant to discharge. It may be appropriate in some cases, for example where the defendant has repeatedly committed minor offences and the program has successfully dealt with the problem behaviour. In other cases participation in the program may persuade the court that a contemplated sentence of imprisonment should not be imposed, but that an alternative is appropriate. In any case, participation in the program will be taken into account if it is in favour of the defendant, but not if it is to the defendant’s detriment
 Regarding diversion in the higher courts the Commission notes that the District and Supreme Courts presently have more limited diversionary options than the Local and Children’s Courts.It recommends that diversion under s 32 and s 33 of the MHFPA be available to the District and Supreme Courts . Amendment of s 32 would provide that the court should take into account when deciding if diversion is suitable, the “nature, seriousness and circumstances” of the alleged offence and  that the services of the SCCLS and CREDIT should be available in those courts to support diversionary decisions .

The report notes that diversion is already a strong focus of the criminal law and procedure relating to young people but concludes that  pre-court diversion could be improved to take into account the situations of young people with cognitive and mental health impairments. Under the Young Offenders Act 1997 (NSW), the present limit of three cautions may cause problems for young people with cognitive and mental health impairments who may not understand that their behaviour is wrong or may have difficulty controlling it. The Commission recommends that it should be possible to exceed the three caution limit when it appears that the young person has a cognitive or mental health impairment, that the proposed scheme for adult pre-court diversion also apply to young people and that the Children’s Court should have access to case management and court support services along the lines of the CREDIT and MERIT programs, and that a government agency be allocated to lead the development of this service. It does not recommend "a specialist list within an already specialised Children’s Court".