Public Defenders
Criminal Law
Conference 2013
What happens to Forensic
Patients?
Olav Nielssen
Presentation plan
• Background and recent history
• Outline of forensic mental health
services
• Results of forensic patient study
• Conditional release and court directives
• MHRT decisions
• Conclusions
Introduction
• McNaughten Rules, Porter test and
Gomaa
• Deinstitutionalisation
• 1990 Mental Health Act
• Construction of new hospitals for
growing number of patients
• Types of Forensic Patients
Forensic mental health system
• Mental Health Screening Unit at AgH2O
• LBPH – “gazetted” for involuntary
treatment – 40 beds
• LBH – 135 beds
• Medium secure beds at Cumberland,
Morisset, Bloomfield - @ 30 each
• Low security longer term beds at
Macquarie, Concord and Cumberland
NGMI
• How long do you serve?
• Does it have to be in strict custody?
• What happens if you get bail before the
verdict?
• How do you get conditional release?
• Are services obliged to meet conditions
set by courts?
Do people malinger NGMI?
• If any, not many
• More accused conceal mental illness
• NGMI usually requires unanimous
opinion
• High level of agreement on NGMI (lower
agreement on fitness for trial)
Forensic Patient Study
• No data to guide lawyers regarding
outcome after NGMI verdict
• MHRT created in 1990 MHA to monitor
and advise regarding release
• Changed from advisory to decision
making role in 2009
Study team
•
•
•
•
•
•
Heather Hayes (UNSW)
Richard Kemp (UNSW)
Matthew Large (UNSW & POWH)
John Feneley (MHRT & MHC)
Sarah Hanson (MHRT & MHC)
Thanks to Greg James, MHRT and
BoCSaR
Methods
• All people found NGMI from 1.1.90 to
31.12.10 and released in that time
• Data taken from MHRT management system
and files
• Demographic, clinical, offence, transfer and
release data collected
• Reoffending data from BoCSaR reoffending
data base (ROD)
• Census – where were they on 31.7.11
Results
• 364 given NGMI verdict in 21 years
(<1% of indictable offences)
• 197 (54%) of those granted conditional
or unconditional release by 2010
• Note: observational study, no controls,
figures for groups might not apply to
individuals, comparisons unreliable
Forensic patients 1990-2010
Unconditional
Release Status
Direct to UCR (n=9)
Total
NGMI
(n=85)
Pathway to UCR unknown (n=2)
(n=364)
CR to UCR (n=74)
Detained
Conditionally Released
(n=185)
Conditional Release Status
(n=112)
Offences of released patients
Bail prior to NGMI verdict
Other
Arson
Offence type
Sexual Assault
Armed Robbery
%Bailed
Assault
Att Homicide
Homicide
0
10
20
30
40
Percent bailed
50
60
70
Bail and disposal from court
• After receiving bail, 81% detained and
18% given Conditional Release
(Significantly more than if not granted
bail; X2 = 26.1, p<001)
• Higher for women than men
180
***
160
140
Sig levels
*
p<.05
**
p<.01
***
p<.001
120
MONTHS
***
100
80
**
**
**
ESTIMATED
ACTUAL
60
40
20
0
MOST SERIOUS INDEX OFFENCE
Comparison of estimated sentence lengths for most serious offence in year of verdict, with actual
time from apprehension until UCR for forensic patients with an NGMI verdict.
Time spent in each phase: UCR patients who
proceeded through all stages
Charge and time in high security
Other
AOBH
Assault
Offence
Arson
Armed rob
Sexual assault
GBH/wound
Att murder
Murder
0
5
10
15
Months
20
25
30
NGMI homicide offenders: Time to
unconditional release
Post NGMI verdict:
5 years 90% still FPs
7 years > 80%
10 years > 70%
20
Leave and community access
• No leave from maximum security
• Graded leave privileges in medium
security
• Escorted, supervised, unsupervised
• Ground, specific areas and then
overnight leave
MHRT considerations – S74
• S74 (d) “In the case of a proposed release, a
report by a forensic psychiatrist or other
person of a class prescribed by the
regulations, who is not currently involved in
treating the person, as to the condition of the
person and whether the safety of the person
or any member of the public will be seriously
endangered by the person’s release”
• Balance of probabilities
Conditional release conditions
• 20 standard conditions
• Require a service, psychiatrist and case
manager
• Responsible for drug tests, checking
adherence, reporting breaches and six
monthly reports to MHRT
Can a judge direct where a
Forensic Patient should be held?
• TD v NSW [2010] NSWSC 368 Hall J
• TD unfit, special hearing, limiting term
• Order made by DC under S27 of MH(CP)A
that TD be detained in a hospital
• Spent 16 days in a non-gazetted cell
• CA: “The purpose of the power conferred by s
27 is to allow the court to determine the place
in which the person is to be detained”.
Bed flow committee
• Previously unit director decided who
should be admitted
• Now system centralised, monthly bed
flow meeting
• No fixed rules, but an expectation that
Forensic Patients go through the
system from max to medium secure
CFMHS
• Independent report writing body
• Risk assessment for MHRT, health
services
• Do not provide any treatment
• Now delaying release and adding to
backlog?
Re-hospitalisation and revocation of
conditional release
• About half returned to hospital, mostly
once or twice
• A quarter had their conditional release
revoked
Revocation of conditional release
Revocation of conditional release
Number of
revocations
1x: 18%
2x: 6%
3x: 2%
4x: 1 patient
Re-offending by forensic patients
• Good news story
• Negligible rate, considering original
offences
• Reasons appear to be close supervision
of treatment and other conditions
• Readmission and revocation of
conditional release
Offending after conditional release
% with no charges:
97% @ 6m
94% @ 1year
91% @ 2years
84% @ 5years
Violent offending post conditional release
9% charged with a
violent offence
4% convicted
Location of conditionally released patients at
census (31.7.11)
Offending after unconditional release
Reoffending data available for 69 UCR forensic patients,
(NGMI post 1994, 6 repatriated to another jurisdiction)
Average follow-up 91 months
8/63 (12.7%) charged with an offence, 3 minor, 1 drug
charge, 4 assaults
3/63 convicted of a violent offence
No prison sentences
Most severe penalty- community service order
No further NGMI verdicts
Substantial impairment and
limiting terms
• Poor outcomes for people with
schizophrenia who get substantial
impairment verdicts
• S74 (e) “in the case of the proposed
release of a forensic patient subject to a
limiting term, whether or not the patient
has spent sufficient time in custody”
• Discriminates against dementia
Conclusions
• Retrospective data – might not apply
prospectively, especially after change in
role of MHRT
• Good news story – very low rate of
reoffending – are we too cautious?
• Under control for longer, but similar time
in actual detention
• Treatment beneficial for the patient
Public Defenders
Criminal Law
Conference 2013