The MIA Mire: what can be done?
Neil Morgan
Inspector of Custodial Services
27 October 2014
Custody Orders: the Courts
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The Criminal Law (Mentally Impaired Accused) Act 1996 states that a person
under a custody order is to be detained indefinitely in an authorised hospital, a
prison/detention centre, or a declared place
People found unfit to stand trial:
– Nothing is ever proved against them
– They must either be unconditionally released or given a custody order.
•
People found not guilty by reason of unsound mind:
– Must be proved beyond reasonable doubt they did the alleged act
– Can be released unconditionally, or on conditions, or made subject to a custody
order if the offence does not fall into Schedule 1.
– For Schedule 1 offences (a long list), the court must impose a custody order
Custody Orders: the MIARB
• People given a custody order are under the auspices of the Mentally
Impaired Accused Review Board (MIARB)
• But the Board often cannot make decisions without the approval of the
Attorney General and Governor
• Individuals transition to release gradually, with increasing freedom and
contact with the community through:
• Leave of Absence Order (LOA)
• Conditional Release Order (CRO)
• Unconditional Release Order (discharged from Act)
• MIARB decisions/recommendations are based on the risk to the community,
including likelihood of compliance with conditions.
Where are people detained?
• On its face, the Act provides options. In reality those options are
very limited:
• Authorised hospital placement
– Only the Frankland Centre (30 beds maximum security) or
Plaistowe Ward (8 beds, open ward);
– Only possible if the person has a treatable mental illness that
cannot be treated in a prison / detention centre.
• There are no declared places
• There are many prisons (adults) and one detention centre
(juveniles). Prisons are commonly the placement of ‘default’, a
task for which they are not intended and not resourced.
MIA and Me: 1995-2000
• For 20 years I have strongly argued for simple practical changes pending a
ground up review of the Act. I have failed.
• 1995/96: the Parole Board was ‘consulted’ about the proposed Act. I was
concerned at many aspects, including:
– Constraints on judicial discretion (options for unfitness and Schedule 1)
– Lack of ‘Declared Places’ (and the inability of proponents to say what they
were, when they would be set up, who would operate them etc).
– Paucity of hospital beds/options
– Lack of a process to properly test the evidence
– The process for reviewing cases
• 1997-2005: member of MIARB (as member of the Parole Board)
• 1997-2000: in an effort to get ‘declared places’, attend innumerable
Kafkaesque meetings. They cost the taxpayer dearly but went nowhere
MIA and Me: 2000-2014
• 2000-2002: fail to persuade Ministers to agree to legislative reform
Instead, the MIA is referred to the Holman Review
• 2002-2003: member of Holman Review’s stakeholder committee
• 2003-2014: predictably, the Holman Review (with its tortoise on the
cover) gets no real traction in terms of MIA Act reform
• 2009: start as Inspector Custodial Services and become increasingly
concerned about prisoners with mental health/impairment issues
• 2012: OICS gets new ‘review’ powers following Mr Ward’s death.
• 2012: Meet Mr B & prioritise a review of MIA’s in prisons.
MIA and Mr B
• ‘I want a date. Everyone else has a date. Can you get me a date?’
• Mr B is less well-known than Marlon Noble, Rosie Fulton or ‘Jason’. But his
case is no less telling:
– Middle aged Aboriginal man: serious cognitive impairments & poor social skills
– November 2008: unfit to stand trial, custody order imposed for damage, street
drinking & obscene act in public
– Previously found fit to stand trial.
– Record: persistent but relatively minor (mainly public order).
– Longest prison sentence (1998) = 12 months for assaulting public officer. Most
recent imprisonment (2003): 6 months.
– Has been held in prison (no declared place / no treatable mental illness)
– Board has worked hard towards his release (including LOA and in 2009 a CRO)
– Mr B was still a prisoner in mid-2014 (albeit with LOA)
The 2014 OICS Report
• Mentally Impaired Accused on Custody Orders:
not guilty but incarcerated indefinitely:
http://www.oics.wa.gov.au/reports/mentallyimpaired-accused-custody-orders-guiltyincarcerated-indefinitely/
• The first comprehensive independent review of
MIA cases
• This presentation focuses on the key findings
(see report for recommendations)
People held under the Act
• 63 people had ever been under the Act
• 34 were under the Act at the time of review, 29
were archived
• 60 male, 3 female
• Age range 14 – 63, mean age was 31
• 33 (52%) acquitted due to unsound mind, 30 (48%)
unfit to stand trial.
• 18 (29%) Aboriginal, 45 (71%) non-Aboriginal
Types of Impairment by Aboriginality
Type of Impairment
Aboriginal
Non-Aboriginal
Total
Mental illness
5
38
43
Cognitive impairment
9
2
11
Mental illness and cognitive impairment
4
5
9
Total
18
45
63
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2/3 of cases involved mental illness. 90% of these cases were non-Aboriginal
82% of the people with a cognitive impairment were Aboriginal
Dual diagnosis cases: 50/50 Aboriginal/non-Aboriginal
Aboriginal people were therefore far more likely to be detained in prison than
an authorised hospital
Types of alleged offence
• 100% of murder and attempted
charges involved people with a
mental illness
• The overwhelming majority of
people held for murder or
attempted murder were nonAboriginal
• In general, Aboriginal people
were held under the Act for less
serious offences than nonAboriginal people
• Some people are held under the
Act for minor crimes (eg
trespass, property damage)
Lack of declared places
• Despite the Act making provision for a mentally impaired person to
be detained in a declared place, no declared place has been
established since 1996.
• All people with a cognitive impairment are held in prison because
there are no alternatives
• Two Disability Justice Centres which will function as declared
places are being established in the metropolitan area. They are
scheduled to open in 2015 and will accommodate up to 20 people.
• This is very welcome but will they adequately cater for diversity
(age/gender/ cultural background etc?)
Lack of forensic beds
• WA has only 1.7 acute forensic psychiatric beds per 100,000 people,
much less than all other states, except Qld.
• Australia as a whole rates poorly compared to other comparable
countries.
• Countries with ten times the quantity of forensic beds still have to use
the prison system as a place of custody, demonstrating how
chronically under-resourced our forensic psychiatric system is.
• The Frankland Centre is constantly at capacity. To make room for new
people, the ‘least unwell’ person is sent back to prison even if they still
require acute care.
Authorised hospitals
• Despite limited places, over half (57%) the people ever held
under the Act were placed in an authorised hospital.
• As noted earlier:
– The vast majority of hospital detainees are non-Aboriginal
– People in hospital have generally been charged with significantly
more serious offences than those held in prison (more than half of
hospital detainees were held for murder or attempted murder).
• People in hospital tend progress to release faster than people
placed in prison
Hospital vs prison
• Around 55% of hospital
detainees have been
unconditionally discharged
compared with less than
30% of prison detainees
• Of the 35 people placed in
hospital all except two were
granted an LOA or CRO
• Almost half the people in
prison were not accessing
an LOA or CRO
Inappropriateness of prison
• Cognitively impaired prisoners are more likely to be exploited by other
prisoners and demonstrate deterioration in their mental health and
adaptive skills due to the demands of prison life.
• Likewise, mental illnesses can be exacerbated by the prison
environment
• The presence of people with serious mental impairments places an
increased burden on staff and an increased risk of self-harm, suicide,
aggression, assault, and behavioural disturbance.
• Prisoners with a mental impairment are greatly over-represented in
incidents such as assault on a staff member (which may well lead to
charges/placement on a management regime)
Coordination of release
• Co-ordination and communication between stakeholders
planning the release of people under the Act
– is better in the mental health system (Frankland) than in
prisons.
– has improved in recent years for those held in prisons but
remains fragmented.
Brief summary
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The current system for managing mentally impaired accused is unjust, underresourced and ineffective.
Community safety and the interests of accused people are compromised by the
fact the courts cannot order the supervised release of a person found unfit to
stand trial.
People with mental impairments, who have never been placed on trial, are
commonly held in custody for longer than the offence would normally warrant.
People with a treatable mental illness who are found not guilty due to
unsoundness of mind generally fare better in terms of accessing release than
those with other impairments found unfit to stand trial.
A chronic shortage of forensic mental health beds and the lack of ‘declared
places’ , leads to people being detained in prison. This is inappropriate and
creates other risks. Improvements are needed to procedures and policies for
mentally impaired people in prison.
Reform
• There is general agreement that reform is needed but progress
has been painfully and intolerably slow:
– No action following Holman Report in 2003
– September 2012: Government said in Parliament that a review
had been completed, including broad consultation with key
stakeholders (did not include judiciary) and that a Bill would be
before Parliament in 2013
– September 2014: DotAG releases a Discussion Paper that is
generally well-written and asks sensible questions, but contains
no proposals.
– Will the tortoise reach the finishing line in 2015 (or 2016)??
Conclusion (i): stage reform if necessary
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Proper reform will need to examine a wide range of issues, including:
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History tells us that wholesale reform of this sort will take time.
Consideration should therefore be given to interim legislative amendments,
including:
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Principles and definitions in the Act;
Whether there should be some sort of trial of the facts
Role of MIARB, the executive and the courts in release; and
Whether orders should be time-restricted.
Giving courts the discretion to make community supervision orders for those
found unfit to stand trial
Repealing Schedule 1
And practical improvements must continue (eg prison-based planning)
Conclusion (ii): Reforming the MIA
Act is barely the tip of an iceberg
• Vital though it is to reform the MIA mire, MIA numbers
are few.
• We must not forget about all those men, women and
children in our prisons and detention centre who have
mental impairments of many different types and
severity. They number in the hundreds (or more). They
need to be given much higher strategic priority and
vastly improved services: and if they are the plight of
MIA’s will also improve.
Thank you for your time
Recommendations from OICS Review
1. The government should examine legislative
amendments to give greater flexibility to the courts in
dealing with people under the Act, including:
(i) community based alternatives to custody orders for people
who are found unfit to stand trial but require some degree of
supervision; and
(ii) repealing or restricting the scope of Schedule 1.
Recommendations from OICS Review
2. The government should examine legislative
amendments to repeal the current ‘executive discretion’
model and to vest authority for decisions regarding the
release of individuals under the Act to:
(i) the Mentally Impaired Accused Review Board; or
(ii) the courts; or
(iii) the Mental Health Review Board.
Recommendations from OICS Review
3. The government should increase the number of dedicated forensic
mental health beds in hospitals. The increase should, at a minimum,
match the increase in prisoner numbers since 1993 and projected future
growth in prisoner numbers over the next decade
4. In addition to expanding the number of forensic beds in a hospital
setting, the government should develop transitional mental health units at
Bandyup Women’s Prison and at least one male prison. These units
should be evaluated with respect to their uptake and effectiveness, with a
view to introducing such units at other prisons
Recommendations from OICS Review
5. The government should continue to progress the establishment
of declared places for people with a cognitive impairment held
under the Act.
6. The government should examine ways to improve the coordination of release planning for people held under the Act.
Consideration should be given to establishing a multi-agency
committee directed by MIARB, which is resourced accordingly
Recommendations from OICS Review
7. The government should examine ways to improve the
co-ordination of release planning for people held under
the Act. Consideration should be given to establishing a
multi-agency committee directed by MIARB, which is
resourced accordingly.
Recommendations from OICS Review
8. The Department of Corrective Services, in collaboration with other
agencies, should develop specific policies for managing people under
the Act, both in custody and in the community. These should include
protocols for enhancing care and treatment, managing challenging
behaviour, initiating leave of absence and developing release plans.
Appropriate staff training should also be provided.
9. The Department of Corrective Services, in collaboration with
external providers, should make individual treatment programs
available to people under the Act who are not eligible for group
programs
Recommendations from OICS Review
10. The Mentally Impaired Accused Review Board, in
consultation with the Department of Corrective Services,
should document the minimum requirements to be
included in treatment completion reports to make them
consistent and useful for decision making. The
Department of Corrective Services and other agencies
should implement these requirements and ensure the
reports they make are quality controlled.