12 June 2013

Cognitive Impairments and Criminal Responsibility

The NSW Law Reform Commission has released a report [PDF] on People with cognitive and mental health impairments in the criminal justice system: Criminal responsibility and consequences. The report (No 138) responds to terms of reference initially issued in 2007. It relates to ss 32 and 33 of the Mental Health (Criminal Procedure) Act 1990 (NSW), fitness to be tried, the defence of "mental illness"; and the consequences of being dealt with via those mechanisms on the operation of Part 10 of the Crimes (Forensic Procedures) Act 2000 (NSW).

The report states that
This is the second and final report addressing people with cognitive and mental impairments and the criminal justice system. The first report (Report 135) was issued in June 2012. It dealt with the diversion of people with cognitive and mental health impairments from the criminal justice system, as well as related matters such as definitions of cognitive impairment and mental health impairment. .... 
The focus of this report, broadly speaking, is on the law relating to people with mental health and/or cognitive impairments who have committed serious offences. We consider fitness to plead, the defence of mental illness, substantial impairment, and infanticide. We also examine the procedures that follow a finding of unfitness or not guilty by reason of mental illness (NGMI), and the management of people who become forensic patients. Further, we consider issues relating to apprehended violence orders against people who have cognitive and/or mental health impairments. We also deal with the retention and destruction of forensic samples taken from people who are diverted, who are found NGMI, or who are unfit and not acquitted at a special hearing (UNA). ... 
A consistent finding of our review is that people with cognitive impairments face particular difficulties in the forensic system. We recommend that a Forensic Working Group be established and that one of its tasks be to develop an action plan for additional and improved options for the detention, care and community support of forensic patients with cognitive impairments (Recommendation 1.1). 
We also recommend that the principal legislation, the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFPA), should be renamed to include people with cognitive impairments (R 1.2). We recommend a review of the MHFPA to ensure it is clear and comprehensible (R 1.3). 
The minimum standards that the defendant must meet before he or she is considered fit to stand trial were set in 1958, and are commonly referred to as the Presser test. From our review of cases and feedback from stakeholders, the standards appear to work well and we do not recommend any fundamental change of direction. 
However, in response to stakeholder concerns, we recommend that the standards be updated and incorporated into statute, as in most other Australian jurisdictions (R 2.1). Codification will improve clarity and accessibility and will deal with some limitations of the present test. 
On balance we think it desirable to include in the test reference to the overarching principle that the defendant must be able to have a fair trial. This is the “touchstone” for making the judgement about whether or not the defendant’s degree of incapacity is, or is not, sufficient to do those things required by the Presser test. 
Modifications to trial processes are sometimes made in some cases where unfitness is an issue in order to make it possible for the defendant to have a normal trial. It is desirable, on the basis of fairness and public interest, for the defendant to have a normal trial if this can be achieved. We therefore recommend that the statutory provisions relating to the test for fitness should also provide that the court consider whether modifications to the trial process can be made, or assistance be provided, to make it possible for the defendant to participate effectively in the trial (R 2.2). 
Stakeholders identified difficulties with the current M’Naghten test for the defence of mental illness. A number of alternative formulations were proposed and considered in an extensive process of consultation. On the basis of the responses, we recommend that the M’Naghten test be revised and updated and incorporated into the MHFPA (R 3.1). This approach had the support of stakeholders and is consistent with developments in Australian and other cognate jurisdictions. 
The M’Naghten test has two elements: the definition of the qualifying mental state and the nexus between that mental state and the defendant’s acts. We recommend that the definition of the mental state required for the defence should be updated, and should be based on the definitions of mental health and cognitive impairment developed in Report 135 (R 3.2). There was very strong stakeholder support for the explicit inclusion of cognitive impairment in the definition. However, we note significant concerns relating to personality disorders and we recommend that they be excluded. We review the relationship between substance induced mental states and the M’Naghten test and recommend excluding addiction and the temporary effects of ingesting substances from the definition. Our recommended definition does, however, include those people who have complex needs. 
So far as the nexus between mental state and act is concerned, we recommend adding to the M’Naghten test a third “limb”, that the defence is made out if the person was unable to control their conduct. We recognise genuine concerns that this element of the test may act to exculpate defendants who were able to, but did not, resist the urge to offend and that it may pose evidentiary challenges, and create some difficult decisions for the tribunal of fact. However, this element of the test is included in most other Australian jurisdictions and was supported by the majority of stakeholders (R 3.2). 
We also consider a number of procedural issues relevant to the defence of mental illness. We recommend that the MHFPA provide that the defence of mental illness may be raised by the defence or, if the interests of justice require it, by the court or by the prosecution with permission by the court (R 3.3). 
We also recommend that if the prosecution and defence agree that the proposed evidence in a case establishes the defence of mental illness, the judge may review the relevant evidence. If satisfied that the evidence establishes the defence of mental illness, the judge must enter a verdict of NGMI. This approach is consistent with other jurisdictions and may save resources in some cases by obviating the need for a trial (R 3.4). 
Finally, we recommend that the name of the defence should include cognitive impairment (Recommendation 3.5) and that the verdict should be one of “not criminally responsible by reason of mental health or cognitive impairment” R 3.6). 
... we review the arguments for and against retention of the partial defence of substantial impairment and recommend in favour of retention because:
  • the balance of opinion of stakeholders weighed strongly in favour of retention 
  • the complexity of cognitive and mental health impairments, and their nature and effects, requires an appropriate range of legal responses 
  • it is inappropriate to apply the label “murderer” to a person whose capacity to understand, make judgments or control her or himself was substantially impaired 
  • flexibility of responses in sentencing and post sentencing apply in cases of manslaughter which do not apply for murder 
  • changes following our 1997 recommendations appear to have appropriately reduced the number of cases in which substantial impairment is raised, and 
  • the jury should have the role of making decisions about community standards in determining culpability. 
We recommend amendments to deal with some deficiencies identified in the formulation of this defence (R 4.1). For reasons of consistency and clarity, we propose that the same definition of cognitive and mental health impairments as we recommend in relation to the defence of mental illness in Chapter 3 should replace the current requirement that a person be affected by an “abnormality of the mind arising from an underlying condition”. 
We review the arguments for and against abolition of the offence and partial defence of infanticide. Although the arguments are finely balanced we conclude in favour of retention. In the very few cases where the defence is used:
  • infanticide affords an appropriate and compassionate criminal law response to the complex and tragic circumstances that may result in a mother killing her infant 
  • stakeholder opinion was strongly in favour of retention, and 
  • infanticide provisions respond appropriately to a particular set of circumstances that may not, in all cases, be adequately dealt with by the partial defence of substantial impairment. 
The identified deficiencies in the present infanticide provisions are best dealt with by way of amendment. 
Section 22A of the Crimes Act 1900 (NSW), which deals with infanticide, relevantly provides that “at the time of the act or omission the balance of her [the mother’s] mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent on the birth of the child”. We recommend amending this formulation to require that, at the time of the conduct causing the death of the child, the defendant had a “mental health impairment consequent on or exacerbated by her having given birth to that child” (R 5.1). This formulation:
  • retains the nexus between the birth of the child and the mental illness that is central to infanticide 
  • requires that there be a temporal connection, and that the mental illness is a consequence of the birth or exacerbated by it, but does not require that it be shown that the illness was caused by the effect of giving birth 
  • replaces the outdated and anachronistic term “wilful act or omission” in favour of “carries out conduct” 
  • removes the reference to lactation because of the lack of evidence of any causal relationship between lactation and mental illness, and 
  • adopts the updated definition of mental health impairment recommended in previous chapters.  
The current procedures that are followed after a person has been found unfit to be tried are complex and cumbersome, can cause lengthy delays and uncertainty, are not appropriate for defendants with cognitive impairments, and were criticised by stakeholders. In consultation we proposed a procedure to streamline these procedures and our proposal received universal stakeholder support. 
We recommend that when the court makes a finding in relation to the defendant’s fitness it also makes a finding as to the likelihood that the defendant will become fit. Those people that the court finds unlikely to become fit will proceed directly to a special hearing. Only those people who are likely to become fit will be referred to the Mental Health Review Tribunal (MHRT) for a maximum of 12 months, so that the MHRT can review their fitness periodically. If the MHRT finds the person fit, the presumption of fitness will be restored and the ordinary trial process may continue. If the person remains unfit, the matter will be referred to the court for a special hearing (R 6.1). 
In relation to the special hearing of a case where the defendant is unfit, we recommend that the MHFPA be amended so that the court may permit the non-appearance of the defendant, or exclude the defendant from the special hearing (R 6.2). In some cases the benefits of the defendant’s attendance at the special hearing cannot be realised. There are sometimes strong countervailing reasons in favour of non attendance, for example, if attendance is demonstrably producing deterioration in the defendant’s health, or where the defendant is unable to control his or her behaviour so that he or she persistently disrupts proceedings. We anticipate that this discretion will be exercised rarely. 
It is the present practice of courts to consider modifications of the trial process to facilitate the defendant’s participation in special hearings. We recommend that a provision in the MHFPA formalise this practice (R 6.3). 
Two issues relating to the conduct of special hearings require further attention. These are the appropriate role of lawyers who represent unfit defendants, and the possible role of a support person to assist the defendant to participate in the special hearing process. We recommend that the Department of Attorney General & Justice convene a working group to give further consideration to these matters (R 6.4). 
People who are found UNA or NGMI have much in common. In both cases the legal system goes as far as possible in the circumstances to provide a fair trial or to establish that the person committed the acts constituting the offence. The MHRT manages both groups in substantially the same way. However, there are significant differences in court powers in relation to these two groups. We recommend that the court powers should be consistent following a finding of both UNA and NGMI (R 7.1). 
We recommend that, in relation to both groups, the court first determine if the person would have been sentenced to imprisonment if found guilty at a normal trial. If he or she would have been imprisoned, the court must nominate a limiting term, being the best estimate of the sentence that would have been imposed at a normal trial. When setting the limiting term the court must take into account that the person’s cognitive or mental situation may mean that he or she cannot demonstrate mitigating or discounting factors available to other defendants. A person ceases to be a forensic patient at the end of the limiting term (R 7.2). 
A significant consequence of this recommendation is that those found NGMI will no longer be at risk of being detained indefinitely. Because of the potential risk factors associated with this recommendation we consulted on this issue extensively. We concluded that a time limit should apply because it:
  • provides an important protection for forensic patients 
  • is fair, and does not provide for forensic patients to be detained or managed within the forensic system for longer than they would have been detained following conviction, and 
  • supports the raising of NGMI in appropriate cases: we were told repeatedly by stakeholders that indeterminate outcomes deter people from raising NGMI, so that people who should be in the forensic system are instead in the correctional system.
Issues of community safety upon release will be dealt with through:
  • ongoing treatment and support in the community 
  • transfer to the civil mental health system or the guardianship system, and 
  • provisions for continuing detention in cases of continuing risk, as recommended in Chapter 11. 
After a court has determined that imprisonment would be appropriate and has set a limiting term it should refer the defendant to the MHRT. The present procedures governing referral and the powers of the MHRT are confusing and inconsistent and we make recommendations to improve them. In particular we recommend that the initial determination about the detention and treatment of forensic patients should be made by the MHRT, which has the relevant expertise (R 7.3). The court should make only an interim order pending MHRT review, which should occur within two months after referral (R 7.3 and R 7.5.) 
There may be a few cases where a person found UNA or NGMI would not have been sentenced to imprisonment at a normal trial. We recommend that such people should be made forensic patients for a two year period (unless unconditionally released earlier), and that the MHRT supervise them with a presumption that they will be treated in the community (R 7.4). 
We recommend that people found NGMI should be able to appeal against this finding regardless of whether they set up the defence. The current position in NSW, which limits appeals if the defendant sets up the defence, is inconsistent with many other Australian jurisdictions. Given the likely mental state of the defendant when making such decisions, and the inherent difficulty in ascertaining this if an appeal is raised, we are of the view that an appeal against a finding of NGMI or a limiting term should not be restricted (R 7.6). We make an alternative recommendation to similar effect which will apply in the event that our recommendations (RR 7.3-7.5) revising procedures after a finding of UNA and NGMI are not adopted. 
This chapter deals with the considerations to which the court and the MHRT should have regard when deciding what orders to make about a person who has been found UNA or NGMI. 
One of the most important decisions concerns the circumstances in which the person should be granted leave or should be released into the community. The existing test is inconsistent both with the test for involuntary detention in the civil mental health system and contemporary understandings of risk assessment. We recommend that the test be changed so that the MHRT should only make an order for leave or release if it is satisfied that the person’s release would not pose a significant risk of serious physical or psychological harm to others (R 8.1). 
We also recommend amendments to the MHFPA to the effect that the MHRT may order leave or release in the rare circumstances where a forensic patient poses a risk of harm solely to themselves, and not to others (R 8.2). In these circumstances the patient should be managed in the civil mental health system or the guardianship system. 
The present relevant provisions of the MHFPA contain a presumption of detention when deciding whether to release a person into the community. We have concluded that this presumption should continue to apply. 
The principle of least restriction, namely that a person with a cognitive or mental health impairment should be entitled to treatment in the least restrictive environment possible, is presently relevant to decisions about forensic patients under the MHFPA, but only indirectly. We recommend that the principle receive more prominence. When making decisions the MHRT should apply the principle that a forensic patient should be provided with the least restrictive environment necessary to protect against serious harm to the forensic patient or to others (R 8.3). This principle means that a more restrictive environment should only be imposed on a patient to the extent that it is necessary to protect against a risk of harm to the person or to others. If there is a less restrictive alternative that would achieve the same aim, then that alternative should be applied. 
We recommend that the provisions for the making of a victim impact statement to the court should be extended to apply in circumstances where the defendant has been found UNA or NGMI (R 8.4). We do so for two reasons. First, such a statement can play an important role in the grieving process for victims of crime. It may also assist in alleviating the problem identified by stakeholders, that victims seek to put their views before the MHRT as the only avenue through which they may be heard. Secondly, we have recommended that the court set a limiting term for people found UNA and NGMI by reference to sentencing principles. Given that a court can take into account victim impact statements in the ordinary course of sentencing a convicted offender for certain specified offences, it is appropriate for victim impact statements to be taken into account similarly in setting a limiting term. 
We also consider the appropriate role of victims and carers in review proceedings before the MHRT. We make no recommendations for change to the provisions applying to victims, this being best left to the MHRT to manage. We recommend that regulations be made to require that carers be notified of upcoming MHRT reviews, and that they be given the opportunity to make submissions to the MHRT on relevant matters pertaining to the care, treatment, control or release of the forensic patient (R 8.5).    
... We consider the management of forensic patients after the court process has ended, focusing on the decision making functions, powers and procedures of the MHRT. 
We identified a number of problems relating to the relationship between the MHRT and other agencies and individuals in the forensic system, including problems with:
  • provision of information to the MHRT 
  • failure to comply with requests or orders of the MHRT 
  • information sharing about forensic patients, especially difficulties relating to privacy issues 
  • availability of services for the support of forensic patients to allow them to progress through the forensic system, and 
  • arrangements for continuing care when a person ceases to be a forensic patient, especially for people with cognitive impairments and complex needs.
We have concluded that these problems are best resolved by agreement and collaboration between the relevant agencies, rather than by law reform. We recommend that a Forensic Working Group of key stakeholders be established to consider these issues and to develop proposals to deal with them (RR 9.6, 9.7 and 9.13). 
The MHFPA makes provision for arrangements to be made for the care of forensic patients who are given leave or release from a mental health facility. However, no agency appears to be responsible for such arrangements when a forensic patient is given leave or released from another place – usually a prison or detention centre. We therefore recommend that the Commissioner of Corrective Services and the Chief Executive of Juvenile Justice develop processes to support planning and arrangements for leave or release of forensic patients, including their subsequent treatment (R 9.8). 
If the MHRT is considering the release of a forensic patient who is UNA, under the MHFPA it must currently have regard to “whether or not the patient has spent sufficient time in custody”. The MHFPA provides no guidance as to the meaning of “sufficient” in this context but it has been interpreted as implicitly punitive in intent. A punitive approach is inconsistent with the legislated objects of the forensic system, and with the MHRT’s central role of overseeing the provision of treatment to forensic patients with a view to promoting patient recovery and protecting the community from harm. Stakeholders agreed that the requirement of sufficient time in custody should be abrogated. We recommend the removal of this consideration from the framework of MHRT decision making (R 9.12). 
The MHRT must inform the Minister for Police, the Minister for Health and the Attorney General of any order it makes for the release of a forensic patient. The provision appears to be a relic from the days when the executive government could instigate the return to custody of forensic patients who were conditionally released into the community. Previous reviews have recommended that the requirement to notify the Minister for Police should be removed and we also make this recommendation. The Minister for Health and the Attorney General have appeal rights against release, and we recommend that the requirement that they be notified be moved, for clarity, to the section of the MHFPA dealing with appeals (R 9.5). Arrangements concerning any notification of the NSW Police Force about release of forensic patients should be dealt with by information sharing arrangements arrived at by agreement between agencies. 
We also make a number of procedural recommendations to respond to identified problems with the MHFPA. These recommendations:
  • clarify when a person becomes, and ceases to be, an interim forensic patient and a forensic patient (R 9.1) 
  • permit reviews to be adjourned by a President or Deputy President of the MHRT sitting alone (R 9.2) 
  • clarify some of the terminology used in the MHFPA to describe people with mental health and cognitive impairments (R 9.3) 
  • suggest that the content of reports to the MHRT be dealt with by regulation (R 9.4)  
  • suggest that the MHRT provide information about ways in which breaches of orders relating to leave and release may be reported (R 9.9) 
  • clarify certain provisions relating to detention and treatment of forensic patients in the civil mental health system (R 9.10 and R 9.11) 
  • clarify certain provisions relating to release (R 9.14), and 
  • provide for suspension of reviews and limiting terms where a forensic patient leaves NSW without the MHRT’s approval (R 9.15).  
The aims of the forensic system are to protect the community, and to provide treatment and services for forensic patients to resolve the issues that caused their offending behaviour. However, in NSW, as in many other jurisdictions, there are insufficient facilities able to provide both the required level of security and also the treatment and services needed by some forensic patients. Consequently, some forensic patients are held in correctional centres. 
A number of problems have been identified with detaining forensic patients in correctional centres, including:
  • providing appropriate therapeutic treatment and services in a correctional environment 
  • the potentially detrimental effect of that environment on the health and psychological wellbeing of people with cognitive and mental health impairments, and 
  • providing programs involving monitored reintegration into the community.
The problems appear to be particularly acute for forensic patients with cognitive impairments. 
We conclude that the MHFPA should provide that forensic patients should only be detained in correctional centres when there is no other practical alternative (R 10.1). Although the detrimental effects of holding forensic patients in correctional institutions are well recognised, it would not be desirable to recommend prohibition of such detention in NSW until alternative facilities are available. 
Resolution of the practical and resource issues that arise in this context, particularly in relation to forensic patients who have cognitive impairments, is a complex task. Consequently we recommend that the Forensic Working Group (R 9.6) develop a strategy and implementation plan for the provision of facilities outside correctional centres for forensic patients who have cognitive impairments, and for management of forensic patients in correctional centres in ways that facilitate leave and release during their limiting term (R 10.2). 
We recommend that all people found UNA or NGMI should have a limiting term imposed (R 7.2). However, there may be some forensic patients who reach the end of a limiting term and still present a serious risk of harm to others if released into the community without the continued oversight of the MHRT. Many forensic patients who present a continuing risk of harm are dealt with by admission to the civil mental health system, by appointment of a guardian with appropriate powers, or through the Community Justice Program. There are likely to be very few patients who cannot be provided for in these ways and in relation to whom continued detention or supervision remains an issue. However, their number is likely to increase as a consequence of our recommendation introducing limiting terms for those found NGMI. 
... we recommend that it should be possible for forensic patients to be detained or to be subject to continuing supervision in the community beyond the expiry of their limiting term in certain carefully defined circumstances. To be consistent with principles of domestic and international law, such a scheme for preventative detention should contain clear grounds and procedures established in advance, reasons for the detention should be required and court control of the decision should be available. 
We review several options for legal regulation of continuing detention. In particular we consider the existing provisions in NSW relating to continued detention of high risk sex offenders and violent offenders and recommend that these provisions be adapted to apply to forensic patients who present an unacceptable risk of causing serious physical or psychological harm to others if they were to cease to be a forensic patient. An application to extend a person’s forensic status should be made to the Supreme Court. There should be an obligation to consider managing risk using less restrictive means, and orders should be limited to a maximum period of five years. If the Supreme Court makes an order, the MHRT will continue to manage the forensic patient, including holding regular reviews, and will be able to make any order it can presently make except an order for unconditional release. The Supreme Court should be able to revoke an extension order if circumstances change significantly so that the order is no longer necessary (R 11.1). 
... we consider the current application and operation of fitness procedures, and the defence of mental illness in the Local and Children’s Courts. Currently the provisions in the MHFPA relating to fitness and the defence of mental illness do not apply in the Local and Children’s Courts. Significant problems with the current regime are identified. We recommend that these courts should be able to apply the provisions relating to fitness and the defence of mental illness in the MHFPA. The Local Court and Children’s Court may divert defendants who have cognitive or mental health impairments under s 32 and s 33 of the MHFPA. Consistent with a proportional response to offending we recommend that, where questions of fitness or the defence of mental illness are raised in the Local or Children’s Courts, the court must first consider whether an order under s 32 or s 33 of the MHFPA should be made. (RR 12.1, 12.3, 12.4 and 12.6). 
Deficiencies in the current law are also identified relating to committal proceedings in both the Local Court and Children’s Court where a defendant is unfit. We recommend that the MHFPA be amended to provide that, if an issue of fitness is raised, the Local Court and the Children’s Court should continue with committal proceedings and reserve the question of fitness for determination by the District or Supreme Court if the defendant is committed (R 12.2 and R 12.5). This has the consequence that a committal hearing will be conducted when the defendant is unfit and unable to participate effectively in the proceedings. However, it appears to be a better solution than the alternative, that there be no committal proceedings because of the defendant’s unfitness, in which case the defendant would lose the possibility of early discharge and the advantage of screening and testing the evidence. 
Stakeholders frequently raised issues relating to apprehended violence orders (AVOs) and, as a result, we issued Question Paper 1 to seek further information. We have summarised the information and case studies submitted by stakeholders to provide a resource for future work on this issue. Because of the nature of our inquiry our focus is on people with cognitive and mental health impairments as  defendants in AVO applications. Other issues arise which are not addressed in this report, for instance relating to people with impairments as victims, witnesses and family members. 
Stakeholders reported that AVOs are commonly being taken out against people with cognitive and mental health impairments, and that they regularly breach these orders. Applications are made by family members, paid carers, and others. People with cognitive and mental health impairments have problems in understanding and complying with AVOs, particularly in the absence of legal representation. For these reasons, orders may not provide the required protection for the victims of violence, and extra-legal supports may be required to ensure compliance. 
We recommend that the court take into account the defendant’s cognitive or mental health impairment in considering whether or not to make an AVO, where the defendant’s capacity to understand and comply with an order is significantly affected. We also recommend that the defendant’s capacity to understand and comply with the order be taken into account when framing the terms of an order. While the protections provided by an order should not be compromised, the effectiveness of an order may be improved if the person can understand what is required of them (R 13.1). 
The terms of AVOs are difficult to understand for many defendants, and we recommend that the Apprehended Violence Legal Issues Coordinating Committee convene a working group to revise the standard and common additional conditions of AVOs and redraft them in plain English (R 13.1). 
Magistrates may be under-resourced and ill-equipped to make an assessment as to the extent and effect of a defendant’s cognitive or mental health impairment in a busy court list. We recommend that they be provided with support and advice by the Statewide Community & Court Liaison Service and that Legal Aid NSW extend provision of legal representation to AVO defendants who have impairments (R 13.1). 
Although an AVO is a civil order, breach is an offence. We recommend that, when responding to breach of an AVO by a person with a cognitive or mental health impairment, the court should consider whether or not it should make an order under s 32 of the MHFPA, so that the defendant is connected with services that will deal with the causes of the breach (R 13.1). 
We note that the requirement for police to apply for an AVO where a domestic violence offence is suspected can have particularly detrimental effects for a defendant with a cognitive or mental health impairment, especially where the AVO is applied for on behalf of a family member or paid carer. We recommend that guidelines be developed for police who are dealing with AVOs where the defendant has an impairment, especially in relation to the exercise of their discretion as to whether that impairment constitutes a good reason not to make an application for an AVO (R 13.2). 
Finally, the Department of Attorney General and Justice is carrying out a statutory review of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), with particular focus on the definition of “domestic relationship” in that Act. If the review recommends retention of the current definition of “domestic relationship”, then we recommend that further consideration be given to clarifying that that a paid carer and client relationship will only qualify as a “domestic relationship” where the client is seeking an apprehended violence order against a paid carer (R 13.3). 
The NSW Police Force can retain fingerprints, DNA samples and other forensic material of some offenders to assist in the investigation of crime. The legislation regulating the retention and destruction of forensic material, the Crimes (Forensic Procedures) Act 2000 (NSW) (CFPA), is intended to strike a balance between promoting the efficient investigation of crime and protecting privacy rights. Although the CFPA contains provisions detailing what should happen to forensic material collected from people who are subsequently convicted or acquitted of an offence, the Act does not specify what should happen to forensic material collected from people who are: subject to a diversionary order under s 32 or s 33 of the MHFPA found NGMI, or found UNA. 
We recommend that forensic material relating to people subject to a diversionary order under s 32 or s 33 of the MHFPA should be destroyed if the person is discharged without conditions. If conditions are applied, as they will be in most cases, the material should be retained only for the period during which it is possible for the court to deal with the original charge. However, the Police Force or the Director of Public Prosecutions may apply to the court for the forensic material to be retained. When considering such an application the court should take into account the gravity of the alleged offence, the circumstances of the offence and the person’s impairment (R 14.1). 
We recommend that a finding of NGMI and a finding of UNA should be treated as equivalent to a conviction for the purposes of the CFPA (R 14.2 and R 14.3). The general effect of these recommendations is that forensic material will be retained in such cases.