Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697644928678.pdf (Australia)
Indefinite detention of people with cognitive and psychiatric impairment in Australia Submission by Mental Health Commission of New South Wales April 2016 Indefinite detention of people with cognitive and psychiatric impairment in AustraliaSubmission 21 The Mental Health Commission of NSW The Mental Health Commission of NSW is an independent statutory agency responsible for monitoring, reviewing and improving mental health services and the mental health and wellbeing of the people in NSW.
It works with Government and the community to secure better mental health and wellbeing for everyone, to prevent mental illness, and to ensure the availability of appropriate supports in or close to home when people are unwell or at risk of becoming unwell.

The Commission promotes policies and practices that recognise the autonomy of people who experience mental illness and support their recovery, emphasising their personal and social needs and preferences as well as broader health concerns.
The Commission is guided in all of its work by the lived experience of people with a mental illness.

The Commission works in three main ways: • Advocating, educating and advising about positive change to mental health policy, practice and systems in order to support better responses to people who experience mental illness, and their families and carers.
• Partnering with community-managed organisations, academic institutions, professional groups or government agencies to support the development of better approaches to the provision of mental health services and improved community wellbeing, and promote their wide adoption.
• Monitoring and reviewing the current system of mental health supports and progress towards achieving the Actions in the Strategic Plan, and providing this information to the community and the mental health sector in ways that encourage positive change.

Summary People with cognitive and psychiatric impairment in NSW can be detained as forensic patients in a mental health facility, prison, or such other place as the Mental Health Review Tribunal may determine.
Although there is the capacity for indefinite detention under the NSW legal framework, there are extensive provisions designed to protect against arbitrary detention.

People who are detained are subject to regular review and independent oversight by the Mental Health Review Tribunal.

This framework is grounded on the principle that people with mental illness should receive the best possible care and treatment in the least restrictive environment possible.
Despite this overarching principle, and detailed legislative protections, people with cognitive and psychiatric impairments in NSW can remain in detention for longer than necessary and inappropriately detained, because of a lack of capacity in the forensic mental health system.

The timing of release can depend more on the availability of a medium secure bed, or adequate supports in the community, rather than on whether there is an end-date to a period of detention.
In Living Well: A Strategic Plan for Mental Health in NSW 2014-2024, the Commission highlighted the importance of strengthening community based responses to mental health needs and shifting our Indefinite detention of people with cognitive and psychiatric impairment in AustraliaSubmission 21 Mental Health Commission of NSW system away from managing acute crises.

The same considerations apply to the forensic mental health system.
The Commission submits that there is room for improvement in the NSW forensic mental health system.

This submission raises a number of possible areas for improvement which are relevant to the Committee’s terms of reference.

Legal and regulatory frameworks In NSW, there is no time limit on the period of detention for people who are found not guilty by reason of mental illness and become forensic patients.
The period of detention for people found unfit for trial who are not acquitted is known as a limiting term.

Recent legislative amendments mean that a limiting term can be extended for people considered to pose an unacceptable risk of causing serious harm to others, and who are not able to be managed using less restrictive means.
Extension orders are sought by the State and granted by the Supreme Court.1 They last for a maximum of five years, but there is no limit to the number of extensions that can be sought, meaning that a small number of people in this group may also be subject to indefinite detention.
Regardless of whether or not a limiting term is in place, the Mental Health Review Tribunal conducts regular reviews of all forensic patients and can order the conditional or unconditional release of a patient if it is satisfied that: (a) the safety of the patient or any other member of the community would not be seriously endangered and (b) that other care of a less restrictive kind is appropriate and reasonably available As discussed below, the availability of services and facilities therefore has a greater impact on when a person is released to the community rather than whether or not they are subject to a limiting term.
In some ways, a limiting term adds additional barriers to release.

First, the Tribunal is required to consider an additional factor before ordering release (whether the patient has spent ‘sufficient time in custody’2).

Second, the limiting term may be administered as if it were a sentence, meaning that people do not have access to step down programs and services until the limiting term is close to expiry.
This then creates a situation where the Tribunal cannot be satisfied that the person can be safely released, as there has been no opportunity to monitor the patient’s gradual transition to life in the community.

Although legal frameworks are not the primary cause of people being detained inappropriately, there are opportunities to improve the legislative framework in NSW.
In 2012 and 2013 the NSW Law Reform Commission recommended extensive amendments to the forensic mental health 1 Mental Health (Forensic Provisions) Act 1990, Sch 1.
2 s74(e) Mental Health (Forensic Provisions) Act 1990 Document Title TRIM Ref 3 Indefinite detention of people with cognitive and psychiatric impairment in AustraliaSubmission 21 Mental Health Commission of NSW legislation to improve access to diversion, extend court-based assessment and case management services, and simplify the management of forensic patients.
Although the NSW Government committed in 2014, in its response to the Law Reform Commission’s Report, to the increased use of diversion and to developing a new diversionary framework, no legislative reform has yet occurred.

The Government is yet to respond to the recommendations relating to the management of forensic patients.

Prevalence of imprisonment of people with cognitive and psychiatric impairments NSW has seen significant growth in its prison population in recent years.
Between December 2012 and December 2015, the average daily number of people in full-time custody in NSW jumped 25 per cent, from 9 720 to 12 210 people.3 The very high rate of mental illness among prisoners (three quarters of NSW prisoners have been told they have a mental illness at some point in their lives) means that as prisoner numbers increase, so does demand for mental health services within the correctional system.
The population of people within the forensic mental health system also continues to grow, and each year the courts and Corrective Services NSW refer more people than are discharged from the system.
Between 2012 and 2015, the number of forensic and correctional patients increased almost 16 per cent, from 387 to 448.4 During the same period, the number of acute and non-acute beds available through Justice Health & Forensic Mental Health has remained steady, at 152 acute beds and 79 non-acute beds.5 The provision of custodial and forensic health services represents approximately 85% of the cost of services for the Justice Health & Forensic Mental Health Network.6 Despite a 25% increase in the number of full-time prisoners, and a 16% increase in the number of forensic and correctional patients, between 2012 and 2015, recurrent allocations to the Network from the NSW Ministry of Health increased only 5%, from $168 million to $177 million.7 The Commission notes the importance of ensuring that adequate services exist to facilitate safe transition to the community and ongoing connections with community services for the growing prisoner and forensic patient populations.
As discussed in Living Well, the Commission is particularly concerned with barriers which prevent Aboriginal people and women from accessing mental health care within the correctional system.

In NSW, Aboriginal and Torres Strait Islander prisoners accounted for over 24% of people in full time custody in December 2015.8 However, this over-representation is not reflected in the rates of access 3 Australian Bureau of Statistics, Corrective Services, Australia.
4 Mental Health Review Tribunal, Annual Report 2013-14 and 2014-15.

5 NSW Health, Annual Report 2013-14 and 2014-15.

6 Justice Health & Forensic Mental Health Network, Year in Review 2014-15.

7 Justice Health & Forensic Mental Health Network, Financial Statements, 2012 and 2015.

8 Australian Bureau of Statistics, Corrective Services, Australia.
Document Title TRIM Ref 4 Indefinite detention of people with cognitive and psychiatric impairment in AustraliaSubmission 21 Mental Health Commission of NSW to prison-based mental health services by Aboriginal inmates.

For example, Aboriginal inmates have a low rate of admission to Long Bay Prison Hospital as correctional patients.

The reasons for this lack of access should be identified and potential solutions explored.
There are high rates of mental health needs among women prisoners in NSW (54.4% report having been assessed or treated for a mental or emotional problem)9.

However, because the large majority of prisoners are male, services have not typically been designed to meet the needs of women.

For example, there are no dedicated beds for women at the mental health unit at Long Bay Hospital, which means that women who require treatment there are kept in seclusion, which is deleterious to their mental health.
The lack of services for women is of real concern at a time when the population of female prisoners is growing at a much faster rate than that of males.10 The differing needs of individuals with various types of cognitive and psychiatric impairments The needs of people with cognitive impairments differ from those of people with mental health impairments, but the forensic system in NSW was built around mental illness.
The Commission notes that NSW has a lack of secure facilities designed for people with cognitive impairments, which means that forensic patients who have co-existing impairments, or who have a sole diagnosis of a cognitive impairment, often end up in prison.

The lack of services for people with cognitive impairments also means that the Mental Health Review Tribunal may have difficulty locating services to facilitate release of a person into the community, meaning that they will spend longer in detention.
This position has been exacerbated by relatively new laws in NSW (detailed above) which enable the extension of limiting terms.

In practice this applies to people with cognitive impairments and places even greater pressure on the limited services available for this group within the forensic system.
The NSW Government is yet to respond to the recommendation of the NSW Law Reform Commission in 2013, which called for an action plan for additional and improved options for the detention, care and community support of forensic patients with a cognitive impairment.

System capacity and pathways out of the criminal justice system The Commission remains concerned that the forensic mental health system in NSW does not have the capacity to meet the needs of forensic patients.
The number of forensic patients in NSW has grown steadily over recent decades.

This will continue to place pressure on the forensic system without a commensurate increase in resources and funding.

9 Justice Health & Forensic Mental Health Network, 2009 NSW inmate health survey: Key findings report.

10 The growth rate of female prisoners between 2012 and 2015 was 6% higher than that of male prisoners: Australian Bureau of Statistics, Corrective Services, Australia.
Document Title TRIM Ref 5 Indefinite detention of people with cognitive and psychiatric impairment in AustraliaSubmission 21 Mental Health Commission of NSW The Commission notes the need for the current mix of services to be inverted, by increasing the availability of medium and low-security placements.
The current balance of services means that capacity is an issue at several stages within the forensic mental health system: • the lack of available beds in the Forensic Hospital means that people are detained in custody until a bed becomes available.

For some people the waiting time exceeds two years.

• beds cannot be made available in the Forensic Hospital without appropriate step-down placements for existing patients.
Some forensic patients are ready to leave the Forensic Hospital but must wait for a bed in a medium-secure facility.

In 2015, some patients had been waiting over a year for transfer • around one third of the people detained in medium secure units could live safely in the community if appropriate accommodation and services were available.11 There is a direct relationship between the availability of community accommodation and support and the length of time forensic patients spend in detention.
The Mental Health Review Tribunal is only able to make conditional release orders when it is satisfied that appropriate arrangements are in place in the community.

Adequate funding of transitional arrangements, such as those provided through HASI Plus and the Criminal Justice Program, would provide a pathway out of detention which would help to ensure that people are not detained for longer than necessary.
The impact of the NDIS People with cognitive impairments are arguably the most at risk of being detained indefinitely, due to the lack of specialist services and accommodation for people with complex behavioural needs and histories of offending.
The Ageing, Disability and Home Care (ADHC) branch of Family & Community Services provided specialist clinical services to individuals who have a psychosocial disability with additional health or social issues, and those who come into contact with the criminal justice system.

ADHC will cease in 2018 following full implementation of the NDIS.
The Community Justice Program (CJP), is an example of a program operated by ADHC, which has been key in assisting people with intellectual disability transition from the criminal justice system into the community.

The program provides a high level of support through supported accommodation, case management and other services which address offending.
Under the bilateral agreement between the NSW and Commonwealth Governments existing CJP clients will be transitioned to the NDIS.12 However, the extent to which the NDIS will meet the needs of future clients who enter the justice system and would previously have been eligible for assistance under the CJP is unclear.
As the Commission noted in its progress report, One Year On, it is imperative that NSW maintains appropriate governance mechanisms following cessation of ADHC, to ensure a coherent system is 11 Mental Health Review Tribunal, Annual Report 2014-15.

12 NSW Government, NDIS Communications Handbook, 2016.
Document Title TRIM Ref 6 Indefinite detention of people with cognitive and psychiatric impairment in AustraliaSubmission 21 Mental Health Commission of NSW preserved for those who require supports (such as secure accommodation in the community) from both the State and the NDIS.

It is essential that there be no reduction in the level of expertise, functions and facilities currently offered by ADHC following the transition to the NDIS.
Any reduction in services or facilities will reduce the opportunity for people with cognitive impairments to transition out of the criminal justice system, and increase the period of time they spend in detention.

Document Title TRIM Ref 7 Indefinite detention of people with cognitive and psychiatric impairment in AustraliaSubmission 21