On April 1, a symposium will be held in Sydney to enable discussion of the pros and cons of mental health courts.
Thanks to Bridget O’Keefe, Law Reform Project Officer with the NSW Law Reform Commission, for providing us with a background briefing.
Bridget O’Keefe writes:
Should NSW have a “mental health court”?
This is the question that will be discussed at a symposium hosted by the NSW Law Reform Commission (LRC) and the Sydney Institute of Criminology, and chaired by ABC Radio National’s Natasha Mitchell (host of ‘All in the Mind’).
The symposium forms part of the LRC’s review of people with cognitive and mental health impairments in the criminal justice system.
Mental health courts are specialist courts, with lists exclusively for people with mental health impairments. They are a growing phenomenon in the US and similar models have been introduced in South Australia, Tasmania and, most recently, Victoria. The term “mental health court” is used extensively in the literature about these courts, but would be unlikely to be the name adopted if such a court was recommended.
These courts use a team approach in which the court works with mental health professionals. Court processes are typically informal and non-adversarial—the lawyers work as part of the court team to determine how each individual defendant should be dealt with. The focus of the team is on the treatment of defendants, rather than determining guilt.
Mandated treatment is an important part of a mental health court program. Participants are usually enrolled for around a year, during which time they must comply with their individual treatment plan. If they do comply, they receive praise and congratulations from the court and may have their conditions relaxed. If they don’t comply, they might be subject to more strict supervision, or even ejected from the program completely.
There are arguments for and against the introduction of a specialist list in NSW.
Mental health courts have been positively evaluated and there is some evidence that they:
- Are more successful than traditional criminal courts in deterring future re-offending;
- Connect defendants with the mental health and community services they need;
- Provide participants with a strong sense of procedural justice.
Mental health courts have been found to be successful in providing an alternative to prison for defendants with mental health impairments, without any increased risk to community safety.
On the other hand, research methodologies employed in some of the evaluations of these courts have been criticised.
There are also criticisms from some people about the coercive aspects of participation in a mental health court. They argue that participation should be voluntary, but for many, the choice is between participation and prison.
There are a number of other criticisms, for example, that it might be better to increase funding for treatment of mental health impairments in the community; that these courts stigmatise defendants by grouping them together in a ‘mental health’ list; and that they widen the criminal justice net by acting as a gateway to services that might not otherwise be available.
These difficult issues will be amongst those discussed at the upcoming symposium and in the LRC’s final report.
Why not have your say?
The symposium will involve an expert panel discussion with a strong focus on audience participation. Places at the event are quickly filling, but are still available.
You can get further information and register online for free.
More information about the LRC’s review is available here.
