Crimes Mental Impairment consultation paper.pdf - Victorian Law ...

Victorian Law Reform Commission
Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper
3.19 Mental illness is also more prevalent among prisoners compared with the general
population. In 2012, the Australian Institute of Health and Welfare (AIHW) reported that
almost a third (31 per cent) of the 610 prison entrants in the 2010 Census across Australia
(excluding New South Wales and Victoria) reported a history of mental disorders. 13 The
AIHW compared this to the self-reported prevalence of mental and behavioural problems
recorded by the Australian Bureau of Statistics in 2009 in the general population (11 per
cent). 14 In 2011, the Victorian Ombudsman reported that ‘[a]lmost one third of Victoria’s
male prisoners have diagnosed mental health conditions’. 15
3.20 This is consistent with many studies showing the overrepresentation of people with a
major mental illness in prison populations. For example, Mullen, Holmquist and Ogloff
reported that ‘up to 8% of male and 14% of females in… (Australian) prisons have a
major mental disorder with psychotic features’. 16 The comparative lifetime prevalence rates
for schizophrenia and psychotic disorders in the general population are 0.3 per cent to
one per cent. 17 In referring to these studies and other research, it has been observed that:
Rates of the major mental illnesses, such as schizophrenia and depression, are between
three and five times higher in offender populations than those expected in the general
community … The prevalence of mental illness is even higher in offenders remanded prior
to trial. 18
3.21 The overrepresentation of people with a mental illness in the criminal justice system does
not mean that mental illness alone causes offending or a higher rate of re-offending:
[W]hile most people with a mental illness do not offend, they are at greater risk for
engaging in offending and violent offending than others in the community. Moreover, this
risk elevates when the mentally ill person also has a co-occurring substance use disorder. 19
3.22 Further, there are a number of factors that have been identified as contributing to the
high numbers of people with mental illnesses in the criminal justice system, including:
the deinstitutionalisation of mentally ill people, an increase in the use of drugs and alcohol
by people with mental illnesses, and the limited capacity of community-based mental
health services to address the needs of mentally ill offenders. 20
3.23 The behavioural, emotional and cognitive problems that can be caused by a mental
illness can present particular difficulties for people at various stages in the criminal justice
system. These problems can make them more vulnerable and at greater risk of harm,
particularly in the prison environment. 21 The disadvantages that are associated with
mental illness, such as homelessness, poverty and risky behaviours, can also put people at
greater risk of coming into contact with the criminal justice system. 22
36
13 This was measured ‘by the proportion that reported having been told at some time by a doctor, psychiatrist, psychologist or nurse that they
have a mental health disorder’: Australian Institute of Health and Welfare, Australia’s Health 2012 (Australia’s Health series no 13 Cat no
AUS 156, Canberra) 131.
14 Australian Institute of Health and Welfare, Australia’s Health 2012 (Australia’s Health series no 13 Cat no AUS 156, Canberra) 131.
15 Victorian Ombudsman, Investigation into prisoner access to health care (2011) 5.
16 P E Mullen, C L Holmquist and J R P Ogloff, National forensic mental health scoping study (Department of Health and Ageing, 2003) 17.
17 James R P Ogloff et al, ‘The Identification of Mental Disorders in the Criminal Justice System’ Trends and Issues in Criminal Justice, Volume
334 (AIC, 2007) 2.
18 Ibid 1–2.
19 James R P Ogloff et al, ‘Policing Services with Mentally Ill People: Developing Greater Understanding and Best Practice’ (2013) 48 Australian
Psychologist 57, 66.
20 Ogloff et al, ‘The Identification of Mental Disorders in the Criminal Justice System’ above n 17, 2.
21 Ogloff, ‘Identifying and Accommodating the Needs of Mentally Ill People in Gaols and Prisons’ above n 8, 2; Mental Health Legal Centre,
Fact Sheet for the UN Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and
Mental Health (November 2009) Community Law at 1 May 2013.
22 Eileen Baldry and Leanne Dowse, People with Mental Health and Disorders & Cognitive Disabilities in the Criminal Justice System in NSW:
Policy and Legislative Impacts (2010) (New South Wales Department of Human Services: Ageing, Disability and Home Care) 1.