1. Criminal Law Conference 2013 Public Defenders

2. What happens to Forensic Patients? Olav Nielssen

3. 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

5. 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

6. Forensic mental health system Mental Health Screening Unit at AgH 2 O 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

7. 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? NGMI

8. 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)

9. 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

10. 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

11. 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

12. 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

13. Forensic patients 1990-2010 Total NGMI (n=364) Detained Total NGMI (n=364) Detained Unconditional Release Status (n=85 ) Unconditional Release Status (n=85 ) Conditional Release Status (n=112) Conditional Release Status (n=112) Direct to UCR (n=9) Pathway to UCR unknown (n=2) CR to UCR (n=74) Conditionally Released (n=185)

14. Offences of released patients

15. Bail prior to NGMI verdict

16. Bail and disposal from court After receiving bail, 81% detained and 18% given Conditional Release (Significantly more than if not granted bail; X 2 = 26.1, p<001) Higher for women than men

17. 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. Sig levels *p<.05 **p<.01 ***p<.001

18. Time spent in each phase: UCR patients who proceeded through all stages

19. Charge and time in high security

20. 20 NGMI homicide offenders: Time to unconditional release Post NGMI verdict: 5 years 90% still FPs 7 years > 80% 10 years > 70%

21. 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

22. 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

24. 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

25. 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”.

26. 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

27. CFMHS Independent report writing body Risk assessment for MHRT, health services Do not provide any treatment Now delaying release and adding to backlog?

28. Re-hospitalisation and revocation of conditional release About half returned to hospital, mostly once or twice A quarter had their conditional release revoked

29. Revocation of conditional release

30. Number of revocations 1x: 18% 2x: 6% 3x: 2% 4x: 1 patient

31. 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

32. Offending after conditional release % with no charges: 97% @ 6m 94% @ 1year 91% @ 2years 84% @ 5years

33. Violent offending post conditional release 9% charged with a violent offence 4% convicted

34. Location of conditionally released patients at census (31.7.11)

35. 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

36. 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

37. 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

38. Criminal Law Conference 2013 Public Defenders