Hayes, Susan --- "Sentencing of People With Mental Disorders" [2005] ALRCRefJl 6; (2005) 86 Australian Law Reform Commission Reform Journal 24

---

Reform Issue 86 Winter 2005

This article appeared on pages 24 – 27 of the original journal.

Sentencing of people with mental disorders

By Susan Hayes*

Many professionals involved in the criminal justice system express the view that a prisoner with a mental disorder should not be in gaol and that ‘prisons are not suitable for people like that’.

When the statement is unravelled, the speaker usually means that the prisoner is difficult to manage, that the other inmates victimise him or her, the prisoner cannot cope with the prison rules and regulations, or participate in a meaningful way in the education or therapeutic options that are available, and that for humanitarian reasons, the brutal environment of prison is unsuitable for a vulnerable individual. The question is, if prison is unsuitable for this group of offenders, what alternatives are there?

Included in the term ‘mental disorder’ for the purposes of this article are the conditions of psychiatric or psychological illness, intellectual disability and other developmental disabilities including autistic spectrum disorders. Many such offenders have dual diagnoses including at least two of these mental disorders, and possibly substance abuse problems and behavioural problems in addition.

The focus on rehabilitation and rights of people with mental illness in the 1970s and 1980s led to legislative reforms regarding treatment of offenders with mental illness, and abolition of indeterminate sentences where an offender is unfit to be tried. The reform impetus has faded, however, and of the major aims of sentencing—rehabilitation, retribution, general and specific deterrence, and protection of the community¹—rehabilitation is given little emphasis, either in practice or in political rhetoric.

Current trends

Sentencing for people with mental disorders can include custodial or non-custodial options, probation and parole supervision, home detention, and referral to special programs or units, both within prison and in the community. The reality is that some offenders with mental disorders will be imprisoned, because of the nature and seriousness of the crime, the community’s desire for punishment, or the safety of the community. The other major reason for imprisonment of mentally disordered offenders is the lack of diversionary options including secure and supervised community residential placements or treatment facilities. This is especially true for offenders with intellectual disabilities, because there is no legislation that parallels mental health legislation in all Australian states and territories, which can mandate treatment and secure placement.

In Australia, the prison population has risen by 43% since 1995, exceeding the 15% rate of growth in the adult population; increases in the prison population have occurred in the Australian Capital Territory (12%), Western Australia (9%), New South Wales (5%) and South Australia (2%), while there were decreases in the other states.²

Rates of mental disorder within the prison population are high, with 74% of the NSW prison population reporting a psychiatric disorder within the previous 12 months, compared with 22% of the general community.³ The prevalence of intellectual disability in NSW prisons among adult prisoners rose from 12.5% in 1988 to 19.3% in 1999.⁴

‘[One] possibility is that increased rates [of mental disorder in the prison population] are the result of a marriage between paucity of community mental health services and heightened legal imperatives. Police are called to crises as an immediate recourse, and conviction for more severe crimes is mandatory, regardless of the mental state of the individual.’⁵

This author comments further that ‘shrinking facilities for people with mental illness requiring acute care mean an increased reliance on the police for crisis management and referral’. Thus, as the prison population increases, the actual numbers and possibly the prevalence of offenders with mental disorders in custody will also increase, and this increase may occur at a disproportionately high rate, as community services dwindle. As long ago as 1979, increase in the prevalence of prisoners with intellectual disability was linked to scarcity of community services for people with intellectual disability.⁶

Issues and controversies

In order for sentencing principles pertinent to mentally disordered offenders⁷ to have a chance of being implemented, the accused person or offender must be identified as having an intellectual disability or another form of mental condition. Identification of the presence of psychiatric illness is more readily achieved than identification of intellectual disability, possibly owing to greater community and professional awareness of psychiatric illness. In 2003/04 the NSW government established the Statewide Court Liaison Service, a cooperative effort between the Departments of Health, Corrective Services, and Attorney General and the Police Service, which now operates in 19 courts across the state. According to the NSW government the service screened 18,902 court attendees, referred 1,945 people for assessment and found 1,413 to have an identifiable mental illness. Of these, 204 were treated in hospital and 702 were provided with treatment by community mental health services.⁸ A notable omission appears to be the assessment, diagnosis and treatment of people with intellectual disabilities. By contrast, in Victoria, the Statewide Forensic Service (SFS) was developed to meet the complex needs of people with an intellectual disability who display dangerous anti-social behaviour, such as acts of violence or indecency, or where there are grounds for criminal charges. Services are offered in a range of environments that vary from very restrictive to community-based settings, but again the primary issue is one of recognition of the presence of intellectual disability. While this is relatively straightforward when the client is in contact with specialist services, those who are not identified as clients of services for people with intellectual disability may well slip through the net.

A brief screening instrument for identifying the possibility of intellectual disability, designed for use by criminal justice agencies, has been available for five years, and is suitable for administration by non-psychologists, including police (to assess if an accused may be vulnerable during police interviews and will require the presence of a support person), corrective services personnel, lawyers, and court mental health liaison professionals.⁹ Generally, Australian agencies engaged in the criminal justice system have not elected to use this or any other screening instrument as part of their procedures. Part of the reluctance to screen for intellectual disability and other mental disorders appears to arise from concern about the repercussions of duty of care—if an accused person or offender is recognised as having a mental disorder, which government department has responsibility for their welfare? The chance of the individual falling through the cracks between government agencies is exacerbated when the issue of responsibility is divided between disability, welfare, health and corrective services. The picture is different in other jurisdictions, however, most notably in the UK where the National Health Service accepts responsibility for the health and wellbeing, and provision of services for people with mental disorders of all kinds, whether or not they are in custody.

Research evidence indicates that a variety of non-custodial sentencing options can be effective in reducing recidivism among offenders with mental disorders. Specialised probation and parole services which utilise a cooperative approach between the criminal justice and human services systems, provide intensive supervision for clients, and address the educational, employment, medical, substance abuse and accommodation needs of the clients can achieve massive reductions in recidivism.¹⁰ Long-term reductions in criminal activity, violent offences, drug-related arrests and incarceration can be demonstrated with comprehensive and flexible therapy that addresses the multiple determinants of offending behaviour, but the interventions are costly in terms of professional expertise and small case loads.¹¹ Similarly, specialised interventions targeting sex offences, arson, behavioural problems, violence and substance abuse have achieved positive results with mentally disordered offenders.¹²

There are a number of problems and ethical issues facing professionals conducting programs for mentally disordered offenders, however. First, there is the issue of informed consent to participation on the part of the offender, and the obverse issue, namely the lack of understanding of the consequences of non-participation. Mentally disordered offenders may not comprehend that they can elect to participate in a program. Lack of willingness to participate may, of course, result in a custodial sentence, but there is nevertheless a choice of sorts. Especially in the case of offenders with intellectual disabilities, participation in treatment is not mandated under community treatment orders, as can be the case for offenders with mental illnesses. On the other hand, limited understanding by this group of offenders of the consequences of non-participation may lead to breach of parole and incarceration. Clinical evidence points to cases where offenders with intellectual disabilities are placed in jeopardy of imprisonment when courts impose conditions that they cannot understand, such as attendance on certain dates and times, or orders that they not approach a particular person. Furthermore, unplanned discharge from a therapeutic program may increase the likelihood of re-offending,¹³ even when the discharge occurs because a program has insufficient funding to fulfil the need for lengthy treatment programs of two or more years, and to provide long-term follow-up.¹⁴

Almost all people with intellectual disabilities who exhibit violent offending behaviour have themselves been the victims of abuse.¹⁵ Any program to address violent behaviour in the offender with intellectual disability must ensure that they are not returned to an abusive environment in a group home, family home or hostel, and yet peer abuse is a widespread problem in services, which many agencies have failed to address. Repeated offences can occur by one service user against another, or against many in the service, and lack of appropriate intervention is the norm.¹⁶

Medication as part of sentencing conditions is controversial, particularly as this intervention is of little use for offenders with intellectual disability. Research on the effectiveness of anti-psychotic medication for people with intellectual disability and challenging behaviour provides no evidence as to whether anti-psychotic medication does or does not help these individuals.¹⁷ Because of the limited data on this important issue, good quality research is urgently needed.

Conclusion

Sentencing options that provide an alternative to prison for mentally disordered offenders can be effective in reducing recidivism and encouraging the offender to acquire patterns of behaviour that are likely to enhance their quality of life. The question has to be asked as to why alternative forms of disposition and non-custodial sentencing options are not more readily used for mentally disordered accused persons and offenders. A major reason is the lack of availability of these alternatives.

‘Unfortunately in some areas of NSW prison facilities provide the only opportunity for readily accessible treatment. In its Crime Prevention Through Social Support: Second Report the Standing Committee [of the NSW Parliament] on Law and Justice reported on instances in rural areas where a magistrate had sentenced people with mental illness because it was the only place they would receive proper treatment programs for their offending.’¹⁸

This approach of using incarceration to access services is in direct contradiction to the now famous statement made by Lord Justice Lawton in R v Clarke:

‘Her Majesty’s Courts are not dustbins into which the social services can sweep difficult members of the public. Still less should Her Majesty’s judges use their sentencing powers to dispose of those who are socially inconvenient. If the Courts become disposers of those who are socially inconvenient the road ahead would lead to the destruction of liberty. It should be clearly understood that Her Majesty’s judges stand on that road barring the way. The Courts exist to punish according to the law those convicted of offences. Sentences should fit the crimes.’¹⁹

A second important issue is the lack of identification of the presence of mental disorder. Appropriate sentencing principles and diversionary options can be applied only where the disability of the accused person or offender is recognised. Before a case reaches the point of sentencing, the competence of the accused in all components of the criminal justice process must be demonstrated, as this is vital to the conduct of the case and therefore ultimately to sentencing. There is not, however, any standardised and comprehensive procedure in any Australian jurisdiction for assessment of the accused; referral for assessment by an expert is haphazard, and usually reliant upon a hunch on the part of the referring professional. Not only does this unsystematic approach impact on the legal rights of the accused, but it also has significant implications for the efficient and effective functioning of the criminal justice system. Trials can be aborted on the basis of many reasons relevant to the accused person’s mental disorder—police may not have followed correct procedure and ensured the presence of a support person, the electronically recorded interview may show the court that the accused did not understand his or her rights to silence or to have a lawyer present, or the issue of fitness to be tried may be raised. A defence lawyer may be confronted with ethical dilemmas when the client cannot make decisions concerning the conduct of the trial. Despite the overwhelming evidence that the prevalence of mental disorders is disproportionately high among the offender population, and that there are grave individual and societal costs attached to overlooking the issue of identification of mental disorder, training programs for criminal justice personnel, and protocols for screening for mental disorder are lacking.

There is ample evidence demonstrating that early intervention and appropriate therapeutic interventions are cost-effective in reducing crime and its associated costs,²⁰ and yet funding continues to be directed towards policing and prisons, rather than towards community-based, preventative options. Until appropriate services are available as viable sentencing options, it will be impossible for courts to adhere to principles governing the sentencing of mentally disordered offenders, and the prisons will continue to be the dustbins into which these offenders are swept, no matter how many judges try to bar the way.

* Associate Professor Susan Hayes is the head of the Centre for Behavioural Sciences, Department of Medicine, University of Sydney.

Endnotes

1. S Traynor, ‘Sentencing Mentally Disordered Offenders: The Causal Link’ (2002) 23 Sentencing Trends: An Analysis of New South Wales Sentencing Statistics and Related Issues, Judicial Commission of NSW.

2. Australian Bureau of Statistics, Prisoners in Australia (2004) 4517.0.

3. T Butler & S Allnutt, Mental Illness among New South Wales Prisoners (2003) Corrections Health Service.

4. Legislative Council Select Committee—Parliament of NSW Select Committee on the Increase in the Prisoner Population Final Report—Parliamentary Paper No 924 (2001).

5. S Henderson, Mental Illness and the Criminal Justice System (2003) Mental Health Coordinating Council.

6. A MacEachron, ‘Mentally Retarded Offenders: Prevalence and Characteristics’ (1979) 84 American Journal of Mental Retardation 165.

7. S Traynor, ‘Sentencing Mentally Disordered Offenders: The Causal Link’ (2002) 23 Sentencing Trends. An Analysis of New South Wales Sentencing Statistics and Related Issues, Judicial Commission of NSW.

8. NSW Government, The NSW Government’s Plan for Mental Health Services (2005).

9. S Hayes, Hayes Ability Screening Index (HASI) Manual (2000) Behavioural Sciences in Medicine, University of Sydney.

10. H Wood & D White, ‘A Model for Habilitation and Prevention for Offenders with Mental Retardation’ in R Conley, R Luckasson & G Bouthilet (eds), The Criminal Justice System and Mental Retardation: Defendants and Victims (1992), 153.

11. C Bourdin, ‘Multisystemic Treatment of Criminality and Violence in Adolescents’ (1999) 38 Journal of the American Academy of Child and Adolescent Psychiatry 242; see also S Hayes, ‘A Review of Non-custodial Interventions with Offenders with Intellectual Disabilities’ (in press in 2005) Current Issues in Criminal Justice.

12. W Lindsay & A Holland, ‘Changing Services for Offenders with Intellectual Disability’ (2000) 44 Journal of Intellectual Disability Research 367.

13. J Law, W Lindsay, K Quinn & A Smith, ‘Outcome Evaluation of 161 People with Mild Intellectual Disabilities Who have Offending or Challenging Behaviour’ (2000) 44 Journal of Intellectual Disability Research 360.

14. W Lindsay & A Smith, ‘Responses to Treatment for Sex Offenders with Intellectual Disability: A Comparison of Men with 1- and 2-year Probation Sentences’ (1998) 42 Journal of Intellectual Disability Research 5, 346.

15. S Hayes, ‘The Relationship between Childhood Abuse and Subsequent Sex Offending’ (Paper presented at 12th World Congress of the International Association for the Scientific Study of Intellectual Disability (IASSID), Montpellier, France 2004).

16. H Brown & J Stein, ‘Sexual Abuse Perpetrated by Men with Intellectual Disabilities: A Comparative Study’ (1997) 41 Journal of Intellectual Disability Research 215.

17. J Brylewski & L Duggan, ‘Antipsychotic Medication for Challenging Behaviour in People with Intellectual Disability: A Systematic Review of Randomized Controlled Trials’ (1999) 43 Journal of Intellectual Disability Research 360.

18. Legislative Council Select Committee—Parliament of NSW, Select Committee on the Increase in the Prisoner Population Final Report—Parliamentary Paper No 924 (2001).

19. R v Clarke (1975) 61 Cr App R 320, 323 per Lawton LJ; see also R v Roadley (1990) 51 A Crim R 336.

20. Legislative Council Standing Committee on Law and Justice—Parliament of NSW, Crime Prevention through Social Support, Second Report—Parliamentary Paper No 437 (2000).