THE CRIMINALISATION OF MENTAL ILLNESS

Transcription

1 THE CRIMINALISATION OF MENTAL ILLNESS 1 Author: Springvale Monash Legal Service Inc. A community development project prepared by Monash Law Students Issues surrounding the care and treatment of individuals who suffer from severe mental illness in Australia have been the subject of fierce social debate since the de-institutionalisation of the Victorian mental health system in the 1990s. However, despite the rhetoric, people who suffer from mental illness in our society continue to be neglected and discriminated against. The long-awaited report by the Mental Health Council of Australia, the Human Rights and Equal Opportunity Commission and the Brain and Mind Research Institute, says the mentally ill suffer from a pattern of continuing neglect. 1 The report, Not for Service was based on 19 public forums, 351 submissions and more than 1000 personal stories from individuals suffering from mental illness and carers. It says that individuals suffering from mental illness continue to face discrimination and difficulties finding health services, especially during crises such as psychotic episodes. 2 Methods of dealing with these individuals tend to be reactive rather than pro-active. The mental health system and the criminal justice system in Victoria do not appear to have the capacity to adequately cater for mental illness, as a result individuals suffering from mental illness seem to be falling into the prison system at a disproportionate rate. In 2003, the Health Services Commissioner compiled a report, Victorian Prisoner Health Study, on the health of the prison population. The overwhelming impression conveyed by the date was that the prison population is far less mentally healthy than the wider Victorian population. 3 It was estimated that prisoners are 3 to 5 times more likely to suffer from a mental illness than individuals in the general community. 4 Other salient figures from the report indicated that: 28% of prisoners surveyed had been told they have a mental illness by a doctor; 5 About half of the prisoners had been in the past assessed or received treatment by a psychiatrist or a doctor for an emotional or mental health problem; 6 Of those prisoners who had received treatment or assessment for an emotional or mental health 1 Wroe, D., & Nader. C., Urgent action call on mental health, The Age (Melbourne), 20 April 2005, 9. 2 Ibid. 3 Victorian Prisoner Health Study, Department of Justice, Government of Victoria, February 2003, p Police Training and Mental Illness A Time for Change, Springvale Monash Legal Service Inc. (2005), p Ibid, p Ibid, p 28.

2 problem, about a third had been admitted to a psychiatric unit or ward in a hospital as a result. 7 2 Such striking figures indicate a connection between mental illness and imprisonment, leading some observers to even suggest that mental illness and Australia s prison system go hand in glove. 8 The body of this paper will discuss the mental health system and the criminal justice system in Victoria, highlighting the most salient problems and the effects these problems are having on individuals suffering from mental illness. Discussion of the mental health system will use the examples of co-morbidity and the homeless population to illustrate that a significant number of individuals suffering from mental illness in Victoria are falling through the cracks in the system. As a result a disproportionate amount of individuals suffering from mental illness are becoming involved with the criminal justice system. Instead of the cycle of neglect being broken at this critical stage, the criminal justice system also has difficulties dealing with mental illness. These difficulties can lead to violent and unnecessary confrontations with police or even imprisonment because of the lack of sentencing options facing the courts. In identifying the problems with the Victorian system, cross-reference will also be made to certain improvements in other Australian states. Finally this paper will conclude with a list of key recommendations and submissions on how our system can break the cycle of suffering and neglect facing individuals suffering from mental illness in Victoria. The Mental Health System The Literature Review, To Inform Department of Human Services project on Responding to People with High and Complex Needs details service gaps in the health and welfare systems. 9 This review reports social isolation, family dysfunction, physical and sexual abuse, homelessness and repeated crisis as frequently being key features of the life experiences of people seen by Human Services as having high and complex needs. 10 The review states that the Mental Health System struggles to assist because of lack of expertise, clear mandate or service model to deal with the interconnected multitude of factors involved in the provision of services for individuals suffering from mental illness. Some outstanding examples of the failures of the mental health system are its inability to cater for the needs of those suffering from comorbidity and individuals who are both homeless and suffer from mental illness. 7 Ibid, p Barns, G., Shock-jock policies are driving the mentally ill into jails, The Age (Melbourne), 14 February 2005, Silberman, M.D., More Prisons for the Mentally Ill, November 2003, p Ibid p 4.

3 Co-morbidity treating criminal offenders demonstrating co-morbidity 3 Comorbidity refers to the presence of one or more disorders or diseases in addition to a primary disease or disorder. In this context, comorbidity refers to where an individual demonstrates a mental health related illness in addition to a substance abuse problem. Studies have revealed that patients with both major mental illnesses and substance abuse disorders have more extensive criminal histories and demonstrate a higher level of risks and needs when compared to patients with major mental illness alone. 11 The report compiled by the Health Service Commissioner, Victorian Prisoner Health Study, highlighted the significant link between mental illness and substance abuse in the Victorian prison population. It was revealed that: 41% of prisoners were determined to have alcohol abuse or dependence; 12 71% of prisoners reported that they had taken illegal drugs at some stage in their life; 13 49% reported that they had injected illegal drugs at some stage in their life. 14 The National Youth Affairs Research Team found that drug use can induce, exacerbate or obscure some symptoms of mental illness. 15 This alteration of symptoms can lead to aggressive or psychotic behaviour that would otherwise not exist. It is during such states of psychosis that an individuals suffering from mental illness is most likely to commit a violent crime. Nevertheless, the practical and philosophical division of mental health and drug treatment services makes it difficult for co-morbid individuals to access appropriate treatment. 16 Services tend to specialise in either mental health or substance abuse. This dichotomy in services means a failure by the Department of Human Services to appreciate the inherent interconnectedness of mental illness and substance abuse and the endless cycle within which both problems revolve simultaneously. For example, people suffering from mental illness may turn to drugs in an attempt to eclipse symptoms of their mental illness or self medicate, while excessive drug use has been linked to the onset of mental illness and psychosis. Rather than dealing with a person s problems holistically, welfare services tend to refer clients on to other facilities in order to deal with the client s other problem. 17 This fragmentation in the health system often leaves those with dual diagnosis alienated 11 Victorian Institute of Forensic Mental Health, 2004/2005 Research Report. 12 Victorian Prisoner Health Study, above n 3, p Ibid, p Ibid, p Szirom, T., King, D., Desmond K. (2004), Barriers to Service Provision for Young People with Presenting Substance Misuse and Mental Health Problems, National Youth affairs Research Scheme, Canberra, p.15, cited in T. Martyn, Caring for our Comorbid Youth, p Ibid p 3 17 Ibid p 3

4 from the welfare system and consequently unwilling to access services. 4 It is necessary for the Department of Human Services to streamline treatment so that issues of substance abuse and symptoms of mental illness can be targeted jointly. Studies in the United States have found that integrated treatment results in higher reductions in substance abuse and hospital use and better patient retention. 18 Mental illness and the homeless population The inability of the health and justice systems to adequately deal with people suffering from mental illnesses has also been linked to the growth of Australia s homeless population. On any given night, almost 100,000 people experience homelessness across Australia. 19 It is estimated that up to 80% of these people also experience some form of mental disorder, including mental illness, drug dependence, intellectual disability and acquired brain injury. 20 Studies have found that individuals suffering from mental illness who are homeless are not being treated by the mental health system and are particularly vulnerable to repeated involvement with the criminal justice system. 21 However, high rates of incarceration of homeless individuals suffering from mental illness is not indicative of the inherent danger of these individuals, but rather the circumstances that stem from living without a home. The poverty experienced by people living on the street may force many to participate in petty theft. A lack of community and family support may lead to a higher prevalence of substance abuse, decreasing the individual s ability to access welfare services and simultaneously increasing their chance of contact with the criminal justice system. Furthermore, the public nature of living on the street, in and of itself, means frequent contact with police. 22 The importance of a stable and safe environment for those suffering from a mental illness should not be underestimated. While access to treatment for mental illness is extremely important, addressing basic needs such as housing, food and employment for people living on the street is often a necessary precursor 18 Martyn, T., Caring for our Comorbid Youth, p 3 19 Tuesday Afternoon Court, Health Innovations Partnerships Program, Annual Report: 2004/2005, p Ibid p Belcher, J.R., Are Jails Replacing the Mental Health System for the Homeless Mentally Ill? Community Mental Health Journal, vol.24, no.3, Fall 1988, p Ibid., p.187

5 5 to treatment needs. 23 The lack of support and care that the homeless mentally ill experience means that far too often these problems are further entrenched rather than dealt with by the criminal justice system. 24 Without proper treatment and care of homeless people with mental illness, many of these individuals will continue to engage in drug use and crime simply to survive a hard and lonely existence on the streets, consequently finding themselves tightly locked in the prison system. The Criminal Justice System Mentally ill individuals who fall through the gaps of the mental health system very often land in the cold hands of the criminal justice system. As a consequence police as well as the prison system are forced to deal with mental illness. A study performed over 10 years comparing public expenditure between mental health treatment and prisons, hypothesised that prison systems, rather than the actual mental health systems, are being used to deal with offenders with mental illness. 25 The question is how well equipped is the criminal justice system to care for those with mental illness? Police and the mentally ill the prevalence of police shootings People with a mental illness are clearly over-represented in critical incidents that result in fatal police shootings. 26 During the period , five out of six fatal police shooting victims were mentally disturbed. 27 The most alarming aspect of figures such as these is that they are not isolated, similar statistics have been compiled over the past 15 years. An Australian Institute of Criminology (AIC) Australia wide study, Police Shootings , reported that 75 people were fatally shot in confrontations with police between 1990 and Of these 75 people, 33 died from self-inflicted wounds and 41 were shot by police officers. Of these 41 deaths, the greatest number, 21 occurred in Victoria. The report states that almost half of the persons involved were under the influence of drugs or alcohol and one third of the victims suffered from depression or some other form of mental illness. 28 The significant number of fatal police shootings from 1990 to 1997, sparked intense criticism over police 23 Martyn, T., above n15, p 3 24 Tuesday Afternoon Court, above n 22, p Silberman, M.D., above n9, p Review of Fatal Shootings by Victoria Police, Report of Director of Police Integrity, November 2005, p Hughes, G., Police hit on deaths of mentally ill, The Age (Melbourne), 25 November 2005, Police Training and Mental Illness A Time for Change, above n 4, p 6.

6 6 handling of mentally ill offenders. In November 1996, this prompted Victoria Police to release a report entitled Project Beacon: a synopsis. The report linked the de-institutionalisation of mentally ill people to the increase in fatal police shootings but commented that there was not a marked increase in fatal shootings when similar policies were implemented in other Australian states. 29 The attitude of Victoria Police towards more recent fatal police shootings involving individuals suffering from mental illness has echoed this earlier view. Instead of looking to problems in police training, police officials have identified de-institutionalisation as the key problem. In an interview with The Herald Sun newspaper over the care of mentally ill Australians, Sen-Sgt Paul Mullet commented: These people really shouldn t be out and about in the community. It is police officers on the front line who have to deal with these people and they shouldn t have to. These people should be under proper care in proper accommodation. 30 He called for the policy of de-institutionalisation to be reversed. Sen-Sgt Mullet said the problem was not a lack of police training in how to handle individuals suffering from mental illness or of police being too reliant on guns to resolve volatile situations, but rather de-institutionalisation has been the cause of the problem. 31 However, a review of the shootings over the period of by the Office of Police Integrity stated that: training, procedures, policies and support mechanisms in tactical situations do not appear to adequately support operational police when they are faced with a person exhibiting violent behaviour as a symptom of mental disorder. 32 The review found that a gradual diminution had occurred in training police to handle critical incidents since the implementation of Operation Beacon. 33 The report also identified the lack of effective partnerships and protocols between Victoria Police and other government agencies responsible for the care of people with a mental disorder for the high incidents of police shootings involving individuals suffering from mental illness. 34 In another report, this time by Victoria Police on the de-institutionalisation of the mentally disabled and its impact on police services, concerns about the lack of police training was 29 Review of Fatal Shootings by Victoria Police, above n 29, p Moor, K., Ill need proper care police, The Herald Sun (Melbourne), 26 November 2005, p Ibid, p Hughes, G., above n 30, p Ibid, p 5 34 Ibid, p 5

7 7 raised with the force members surveyed. Of the police surveyed, 86% felt that there should be a more intense form of police training concerning the mentally disabled. These respondents also agreed that there should be further development of a knowledge base about the service systems designed to support this particular group in the community. 35 It is also important to highlight that only 52% of the respondents felt that they were able to adequately cope during the interventions with mentally ill subjects. It appears, however, that calls for greater police training to deal with offenders suffering from mental illness has fallen on deaf ears. The Mental Illness Fellowship Victoria reported in 2005 that Victoria Police recruits receive approximately 70 minutes of training on mental illness at the Police Academy, despite the fact that mental illness related situations are currently estimated at a minimum of 30% of police work. 36 When questioned over the number of police shootings in 2005, Assistance Commissioner (Crime) Simon Overland said that it was unfair to compare these incidents with the early 1990s. 37 Police Association assistant secretary Bruce McKenzie also said these shooting deaths were not indicative of a trend and further inquiries were not needed. 38 However it appears that further investigations would be justified as little has changed since the spate of police shootings of the early 1990 s. Liberty Victoria president Brian Walters said that the reoccurrence of police shootings indicates that police don t want to change themselves and it s really time they were forced to change from the outside. 39 Sentencing the Mentally Ill Another shortcoming of the criminal justice system is the courts lack of sentencing options for individuals suffering from mental illness. This lack of choice means that crimes committed because of an inability to properly deal with symptoms of mental illness are punished by imprisonment. In Victoria, unless a person is severely mentally ill, so as to warrant the defence of mental insanity, unfitness to stand trial or hospital orders, individuals with mental illness are subject to the normal judicial and correction system. 40 In this way the courts tend to dichotomise issues disregarding that such absolute distinctions are intolerant of 35 Australasian Centre for Policing Research, Deinstitutionalisation of the mentally disabled and its impact on police services, Report Series No. 93, p Ibid, p Berry, J., & Petrie, A., Shootings not comparable with 1990s: police, The Age (Melbourne), 21 April 2005, Ibid. 39 Ibid. 40 Silberman, M.D., above n 9 p 6.

8 8 the ambiguities faced. 41 As a result mental illness is criminalized 42 and those that suffer from it are sentenced and incarcerated along with other criminals in the brutal and damaging environment of the prison system. A system that is unable and unwilling to cope with the needs of the mentally ill. Victorian prisons have no dedicated psychiatric units and no full time psychiatrists, only nurses and consultant psychiatrists, 43 although there is one 100 bed secure hospital for patients from the criminal justice system in need of psychiatric treatment. 44 This is alarming considering the symptoms being demonstrated by many of the prisoners. Andrew Forrester of the Deer Park women s prison says that the Deer Park prisoners have histories of sexual and physical abuse, drug addiction and serious mental conditions, such as bipolar disorder, schizophrenia and depression. 45 Various reports in this area have confirmed the problems with the prison system. The Australian Law Reform Commission in its report Federal Offenders with a Mental Illness or Intellectual Disability identified major problems with both the criminal justice system and the prison system in relation to offenders with a mental illness, 46 the report highlighted: A lack of alternative sentencing options; Limited access to parole; A lack of appropriate and accessible rehabilitation and treatment programs in prison; A lack of appropriately qualified staff to deliver treatment and rehabilitation in prison; A lack of appropriate accommodation in prisons for people with ongoing mental health conditions; The Mental Health Co-ordinating Council s Submission to the Australian Law Reform Commission regarding 1B of the Crimes Act 1914 also recommended, amongst other things, that if it is absolutely necessary for a person with a mental illness to be imprisoned that: Mental health services should be accessible in the prison system; 47 The least onerous conditions should be imposed, measured against risk assessment in the least restrictive circumstances; 48 and 41 Reder and Lucoy in Ibid p Ibid, p Victoria Legal Aid, Submission to the Senate Select Committee on Health, 16 May 2005, p Doctor laments state of mental health services in prison, The Age (Melbourne), 31 March 2005, Australian Law Reform Commission 103 Same Crime, Same Time: Sentencing of Federal Offenders 28. Federal Offenders with a Mental Illness or Intellectual Disability, Mental Health Co-ordinating Council, Submission to Australian Law Reform Commission on Part 1B of the Crimes Act 1914, April 2005, Recommendation Ibid, Recommendation 8

9 9 Funding should be allocated for education and workforce development for staff of the criminal justice system. 49 Nevertheless, there is a strong opinion by some in law reform that prisons are simply not the place for individuals suffering mental illness and that those that commit crimes ought to be diverted to community services that will protect and support their specific needs. 50 Melbourne QC Jim Kennan argues that a prisoner who receives a sentence inspired by the motives of retribution, deterrence, denunciation and incapacitation is hardly likely to be rehabilitated by the experience. 51 Furthermore, incarcerating a mentally ill offender may not achieve the desired goals of deterrence that a prison sentence seeks to achieve. Changes to criminal justice system in other states of Australia have gone some way in solving these problems. NSW is host to a Statewide Community and Court Liaison Service (SCCS) which is an initiative in court liaison and diversion for those charged with minor offences. SCCS provides mental health assessment and psychiatric triage in the courts and holding cells by a psychiatrist or mental health nurse. 52 Clinical nurse consultants assist magistrates, solicitors, police prosecutors, and other court staff with the diversion of people with mental health problems from the criminal justice system into mental health services, hospitals and community settings. 53 The most radical and successful reform in this area has been in South Australia. In June 1999 a Mental Health Court was established to apply the principles of therapeutic jurisprudence. 54 Rather than making a finding of guilt or innocence the court plays an active role in providing treatment and services needed to break the nexus between mental illness and crime. 55 The Mental Health Court deals with people who have an impaired intellectual or mental functioning as a result of a mental illness, intellectual disability, personal disorder, acquired brain disorder or even a neurological disorder like dementia. 56 The court hears summary offences and some minor indictable offences such as shoplifting, property damage and assault causing bodily harm. 57 Psychiatrists attached to the court make an assessment of the mental health of the 49 Ibid, Recommendation Ibid, Recommendation 3 51 Silberman, M.D., above n 9 p Greenberg, D., and B. Nielsen, Court Diversion in NSW for People with Mental Health Problems and Disorders, NSW Public Health Bulletin, July 2002, p Ibid, and S. Henderson, Mental Illness and the Criminal Justice System, Mental Health Co-ordinating Council, May Wexler, D., Therapeutic Jurisprudence: An Overview, Thomas Cooley Law Review, p The Law Report, Mental Health and the Law, Radio National, 14 March Ibid, J Canne. 57 Ibid

10 10 offender in order to try and determine the causes of the criminal behaviour. Once there is a general consensus as to the events of the case the matter is adjourned. The defendant is then placed on a court monitored treatment program which can consist of counselling, medication, assistance with housing and other basic living arrangements. 58 During this time the defendant is required to return to the court at designated intervals so the person s progress can be assessed. Once the defendant has shown significant improvement the prosecution may withdraw the charges, in which case there will be no record of charge for the offender. If the prosecutor refuses to withdraw charges the Magistrate will make a decision to either release the person without conviction, release the person with a conviction and on a good behaviour bond, or release the person on bond with supervision. 59 This idea of pinpointing why a certain offence was committed and then targeting that issue during treatment seems to be a very successful strategy according to Magistrate Ted Luliano and Sue Desmohamed of the Mental Health Court who argue that they have an extremely high success rate. 60 If a Mental Health Court were to be piloted in Victoria, it would be paramount to ensure that the Court enabled the defendant suffering from mental illness to be diverted from the criminal justice system at the earliest possible opportunity and further, that there be no record of their involvement with the justice system, nor of any their illness. Conclusion Individuals suffering from mental illness are an extremely disadvantaged group in our society, making them both easy to ignore and neglect. More often than not, their illness renders them powerless and incapable of reversing what can become an endless downward spiral. It is therefore even more important that the right mechanisms are put in place by society, the mental health system and the criminal justice system to assist and protect those of us affected by mental illness. The Victoria Legal Aid Submission to the Senate Select Committee on Mental Health outlines initiatives to help strengthen the ability of the mental health system to care for and treat individuals with mental illness 61, they recommend: The development of programs that deal with youth and first instances of psychosis, to help establish a connection with mental health services early on. 58 Ibid 59 Ibid, T. Luliano. 60 Ibid 61 Victoria Legal Aid, above n 43 pp 1-10.

11 11 The development of an adult inpatient unit that specialises in the immediate treatment and care of people in acute situations, and that can hold people for as long as necessary to avoid relapse. Increased funding to after hours crisis services to ensure that mentally ill people across the state receive appropriate support. The development of education programs for mental health professionals so that consumer opinions and consumer support are better used. An increase in services to do with housing and employment of the mentally ill. Further education for employers about mental illness along with employment incentives More intensive training programs for police to avoid unnecessary arrests and conflict with people with mental illness. In addition to the above proposals the mental health sector needs to adopt a holistic service model that aims to approach mental illness from a range of angles so that any given treatment reflects the complexities of the situation at hand. The wider community also has an obligation to increase education surrounding mental health so as to reduce the stigma that is so often associated with the mentally ill. Government funding for the mental health sector will only be increased if there is significant pressure from the community. Furthermore, the criminal justice system has a duty to implement creative solutions for dealing with a population that seems to not respond well to harsh punishment and notions of retribution. One suggestion would be to ensure that there are accessible programs which can successfully divert individuals suffering from mental illness out of the justice system and into the health sector. One of the major challenges for the criminal justice system is balancing social demands to get tough on crime, a genuine obligation to protect the community and the need to treat and rehabilitate individuals suffering from mental illness. This is a challenge that must be addressed, not only for the sufferers of mental illness, but also for the victims of their crimes. In Victoria, the scales are heavily tipped in favour of adhering to social paranoia and projected stigma, while crimes continue to be committed, victims continue to suffer and the mentally ill are left to rot, lurking in the shadows of society or locked away in prisons, without voice and without hope.

12 12 Bibliography Australasian Centre for Policing Research, Deinstitutionalisation of the mentally disabled and its impact on police services, Report Series No.93. Australian Law Reform Commission, Report 103, Same Crime, Same Time: Sentencing of Federal Offenders 28. Federal Offenders with a Mental Illness or Intellectual Disability at Australian Institute of Criminology, Mental health and drug dependency amongst police detainees, No.102, Canberra. Barnes, G., Shock-jock policies are driving the mentally ill into jails, The Age (Melbourne), 14 February 2006, 13. Belcher, JR., Are Jails Replacing the Mental Health System for the Homeless Mentally Ill, Community Mental Health Journal, (1988) Vol. 24, No. 3, Berry J., & Petrie A., Shootings not comparable with 1990s: police, The Age (Melbourne), 21 April 2005, 6. Doctor laments state of mental health services in prison, The Age (Melbourne), 31 March 2005, 12. Forensicare, Thomas Embling Hospital, [accessed august 4, 2006] Frenkle, J., Mental health system damned, The Herald Sun (Melbourne), 20 October 2005, 15. Fryer, D., Victoria Police and MI Fellowship, Mental Illness Fellowship Victoria, Spring 2005, 3. Greenberg, D., and B. Nielson, Court Diversion in NSW for People with Mental Health Problems and Disorders, (2002) NSW Public Health Bulletin, 13(7): Greenberg, D., and B. Nielsen, Moving Towards a Statewide Approach to Court Diversion Services in NSW, (2003) NSW Public Health Bulletin, 14(11-12) Henderson, C., Mental Illness in the Community: Why Individuals With Mental Illness Are Over- Represented In the Criminal Justice System, at

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14 Wroe, D., & Nader, C., Urgent action call on mental health, The Age (Melbourne), 20 April 2005, Your Rights: Mental Illness and the Criminal Justice System in Victoria, Produced by the Mental Health Legal Centre, July 2006.