Mental illness and cognitive impairment in the criminal justice system

Fri Aug 11 2017
Statement from President Arthur Moses SC

The recent report of the Mental Health Commission of New South Wales Toward a just system: Mental illness and cognitive impairment in the criminal justice system has identified the lack of appropriate mental health services as a major factor in the increasing prison population which also has substantial effect on the criminal justice system as a whole in this state. The report found that at least half of adult prisoners and the vast majority of young people in custody have been diagnosed with mental health issues. In the absence of properly resourced support services, the report found that the majority of these inmates will re-offend when released back into the community. The report was the subject of an article by Michaela Whitbourn in today's Sydney Morning Herald.

The commission’s research indicates that "improvements to health and disability services could interrupt the cycle of reoffending and improve public health and safety" as well as reducing costs for the justice and corrections systems.

The Mental Health Commission’s recommendations reflect the approach taken by the NSW Law Reform Commission released in its Report 135: People with cognitive and mental health impairments in the criminal justice system: Diversion, which was published in August 2012. The Law Reform Commission report contains a number of crucial recommendations to improve the way that our criminal justice system deals with people with cognitive and mental health issues. The report also found that people with cognitive and mental health impairments are clearly over-represented at all stages of the criminal system justice system. The Report recommends the adoption of an integrated system of diversionary options ranging from the first point of contact with police to court appearance, to enable people with cognitive and mental health issues to be referred to appropriate services when they are needed. Some of the Law Reform Commission’s major recommendations include:

  • The extension of diversion powers to police
  • Strengthening the existing diversionary powers of the courts
  • Establishing a specialist court list for people at risk of imprisonment
  • Extension of current court-based assessment and case management services to ensure that diversionary orders can work to link people to services that will reduce their chance of re-offending and improve outcomes for them.

Five years on, the NSW Government has yet to implement the principal recommendations of the report. The report from the Mental Health Commission released last week demonstrates that there are increasing numbers of persons being imprisoned who are suffering mental health issues. This significant delay by the NSW Government is to the detriment of society and individuals when measures have been identified that could be implemented to minimise or stop re-offending.

The New South Wales Bar Association urges the NSW Government to expedite the implementation of measures to enable the criminal justice system to deal more effectively with offenders with mental health issues. It is important that persons with mental health issues are not railroaded into prison where there are other options to deal with this increasing problem within society and minimise or stop re-offending. The New South Wales Bar Association is willing to work with the Government in the implementation of these crucial recommendations.

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