Mental Health and the Criminal Justice System

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Depressed man

17-year old Stephen Downing had learning difficulties and a reading age of 11. After nine hours of intense police interrogation, he eventually confessed to the murder of a 32-year old legal secretary. There was just one small problem: he didn’t actually commit the crime. Downing spent the next 27 years of his life in gaol before his conviction was finally overturned in 2002.

Similarly, 23-year-old Stephen Kiszko confessed to the murder of an 11-year-old girl under duress and spent sixteen years in prison, before forensic evidence revealed it was not possible for him to have been the killer. 

Although these are remarkable cases they aren’t, unfortunately, isolated ones. Those who live with mental health conditions are particularly vulnerable in police custody, and indeed throughout the criminal justice system.  

That being so, the system has measures in place which seek to protect those who suffer from mental health conditions, and to divert them towards getting the treatment they need.

Crisis intervention in police callouts

A 1998 report found that more than one third of people shot dead by Australian police officers in the preceding eight years were either depressed or had a history of psychiatric illness.

These tragedies, many of which were preventable, have triggered responses by some governments. Queensland, for example, is currently establishing Mental Health Crisis Intervention Teams, whereby police and mental health professionals will work collaboratively to de-escalate crises in a safe and humane way.

For most states, however, police respond to incidents without any support from mental health professionals, having received little or no mental health training.


A mental health diagnosis is taken seriously in the eyes of the law and can lead to the defendant’s diversion away from the criminal justice system and into the health system.

Under section 32 of the Mental Health (Forensic Provisions) Act 1990, Local Courts are empowered to divert those who are suffering from a mental health condition into a treatment plan that lasts up to six months, instead of otherwise dealing with them according to the law.

Most states and territories have a mental health liaison service designed to assess the health of someone who has either been arrested of brought before a criminal court.

Queensland is the only jurisdiction to have a specialist Mental Health Court to determine the “insanity defence” or the “defence of diminished responsibility”. Within this court, a Supreme Court Judge receives expert advice from two Psychiatrists and consider references from a variety of sources including the legal representative, the Attorney-General, the Director of Public Prosecutions or the Director of Mental Health. This court is not bound by the same rules as a criminal court and can rely on information as it deems appropriate.

In other states and territories, the question of whether a person is fit to stand trial or – in the event of a trial – are not legally responsible due to mental illness are determined within the general criminal court hierarchy.

Involuntary mental health detention

The fate of those who have been “civilly committed” may be determined by specialist mental health tribunals.

The role of these tribunals is to balance the competing paradigms of “criminal justice” and “health and welfare”. They typically consist of people with medical and legal qualifications, as well as members of the community.

The powers of these tribunals vary between jurisdictions. In some states, they play an advisory role to court or executive government; in others, they make autonomous determinations. 

There is currently a very large disparity between jurisdictions when it comes to a person’s rights within involuntary detention.

Depending on where you are, it could take anywhere between two and eight weeks to have your detention reviewed. You may or may not have a right to be legally represented; to dispute the use of ECT (electro-convulsive therapy); or to request alternative treatment from a tribunal.

On this front, the Northern Territory (NT) is perhaps the most accommodating jurisdiction. Within the NT, the tribunal is mandated to appoint a lawyer for someone with a mental illness and order the government to cover the associated costs.

Involuntary AOD detention

The Involuntary Drug and Alcohol Treatment Program or “IDAT Program” is an option of last resort for people in NSW dealing with severe substance dependence.

The laws regarding involuntary treatment are found under the Drug and Alcohol Treatment Act 2007 (NSW) (‘the Act’) and allow for the involuntary detention, assessment and treatment of a person with a severe substance dependence disorder for up to 28 days.

The IDAT Program provides medically supervised withdrawal management and post-withdrawal assessment and treatment in a specialised inpatient unit. There are 12 IDAT beds across two hospital-based treatment centres: one at Royal North Shore Hospital campus with four beds, and Bloomfield Hospital campus in Orange with eight beds.

Forensic mental health care 

People who are found “not guilty” by reason of serious mental illness may be categorised as a “forensic patient” and ordered to receive treatment in a secure mental health facility.

In that event, their condition will be assessed on a regular basis – that regularity depending on the jurisdiction – and they will not be eligible for release until they no longer pose a threat to the community.

This can lead to a person being held in a facility indefinitely.

Mental health treatment in prison

Across the nation, the ability of prisons to adequately care for those suffering from mental health condition is extremely limited. In Queensland, for example, a recent report revealed there were just 1.5 mental health workers for 3500 inmates.

In some jurisdictions, inmates may receive involuntary treatment for their conditions. Those at risk of suicide and self-harm may be secluded in ‘at risk’ units or locked down in isolation cells, kept under constant video surveillance.

So, while there is consensus between health experts that providing proper support to those living with mental health conditions can lead to positive outcomes – for both the sufferer and community as a whole – the resources behind bars are simply not there.

Perhaps governments would be well-advised to focus on the issue of support and rehabilitation, in order to reduce the risk of re-offending upon release.

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Amy Sarcevic

Amy Sarcevic

Amy Sarcevic is a freelance media, blog, technical and copy writer. She has written for a range of reputable publications in addition to Sydney Criminal Lawyers.

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