The Criminal Justice System’s Failure to Deal with Mental Health

Positive mental health is important to maintain a balanced and healthy lifestyle, which can in turn lead to positive social, economic and physical health outcomes as well as reduce the likelihood of criminal offending. 

But sadly, mental health issues continue to be prevalent across Australian society, and those in the grips of mental health impairments such as depression, anxiety, bipolar disorder and substance induced impairment or cognitive impairments such as intellectual disability, dementia, autism and acquired brain injury can find it hard to cope with everyday life, which can in turn lead to anti-social conduct.

So today, World Mental Health Day, we take a look at the prevalence of mental health as well the correlation between mental health conditions and criminal offending, and the failure of the justice system to properly address the needs of those with mental health issues.

Prevalence of Mental Health Conditions

Mental health issues affect people of all ages, backgrounds, and ethnicities, and is prevalent across the globe.

Research suggests that 1 in 3 women and 1 in 5 men across the world experience depression at least once throughout their lives. And 1 in 3 of those with a psychiatric illness have been arrested in the last ten years, highlighting the significant rampancy of mental health within the justice system. 

This starkly high rate of incarceration among those with a mental health condition is a desperate cry for a more comprehensive approach to mental health. It’s a wake-up call to the society that individuals, who are part of our community, are suffering due to a lack of treatment, care, and support, leading to a vicious cycle of imprisonment and release. 

Limitations of Diagnosing Mental Health 

Despite the high prevalence of mental health conditions, there are still limitations on reporting and studying its effects on both short and long-term illnesses. 

Firstly, many people who are suffering from mental health concerns might keep it to themselves. If someone thinks they do not have a support system or do not know who to reach out to, they won’t report an issue. A lack of awareness or local support systems can lead to underreporting of any psychological issues.

Secondly, diagnoses might be inconsistent across geographical areas and cultures. For example, one practitioner might interpret a person’s symptoms as one illness, whereas another healthcare professional might develop a different diagnosis.

Furthermore, there are limited reporting and data sources for research on mental health diagnoses. Often, only public hospitals’ data is included in local or national studies. 

Lastly, geographical areas may use different qualifications to diagnose a patient, leading to a misinterpretation of the data or unintentional false reporting. 

For Australia, and the world, to comprise a foolproof healthcare system that addresses mental health concerns, determining the root cause of the issue, and providing an accurate diagnosis, is essential.  

Mental Illness & the Justice System 

People with mental illness are overrepresented in the Australian criminal justice system. 

For example, a study in New South Wales showed that nearly 50% of received inmates and almost 40% of sentenced inmates had reported suffering from a mental disorder (anxiety, affective disorder, or psychosis) within the last year. When the study used a broader definition of a ‘psychiatric disorder’, almost 75% of NSW inmates qualified as having had a mental disorder in the last 12 months. 

This study, along with others throughout the country, indicates that there is a much higher incidence of inmates with mental illness in the Australian criminal system than in society as a whole. 

Another interesting finding is that female prisoners have reportedly higher numbers of psychiatric disorders than male prisoners, with 90% of female prisoners reporting a mental illness within the year before being sentenced. The most common mental disorder for females was substance use disorder affecting 75% of the inmates. 

Lastly, the Australian Bureau of Statistics conducted a survey in the Mental Health and Wellbeing: Profile of Adults, Australia, which showed that 18% of Australians had a mental illness during the one-year period prior to the survey. This is a huge discrepancy from the 74% of prisoners with a mental disorder in the NSW study, showing that mental health is much more pervasive in the justice system than in Australian society. 

Correlation Between Mental Health & Crime

So, what is the reason that prisoners have a much higher representation of mental illness than in generalised society? Are there any causes of the astonishingly-high rates of mental health concerns in the prison system? 

Homelessness 

One of the leading causes of the high rates of prisoners with mental illness in the Australian criminal justice system is homelessness. ¾ of inmates in the country’s prison system received punishment, whether sentencing, fines, or charges, related to behaviour correlating with being homeless. 

Such charges were typically the result of acts caused by a lack of permanent  dwelling, such as asking for money, drinking in public, using public transport without paying, or shoplifting necessities to survive. 

Furthermore, when society attempts to ‘solve’ the homelessness crisis in society, they end up bringing homeless individuals into contact with a police presence. In certain circumstances, this can lead to police placing homeless individuals in a state-funded facility or prison to make them ‘safer’. 

Lastly, once a homeless person is in the system or charged with an offence, it is extremely hard for them to reintegrate into society, post bail, or acquire the funds or support necessary to stay out of prison. Mentally ill individuals might be unable to post bail due to a lack of funds, not having a home address, or a misunderstanding of bureaucratic needs.

Lack of Mental Health Facilities 

In the past two decades, the closure of numerous mental health facilities and hospitals has had a profound impact on those in need of medication, treatment, and diagnoses. For instance, Queensland has seen a significant increase in the number of female inmates with cognitive and mental disorders in the prison system due to the closure of psychiatric facilities. This is not just a statistic, but a human tragedy. 

The Mental Health Coordinating Council reported that the number of inmates with schizophrenia directly paralleled the closing of mental health facilities in Australia. 

Lack of Treatment Options 

Finally, a huge reason why there is a historically high number of individuals with a mental health issue in the prison system is because of a lack of treatment or inadequate options. 

Studies have shown that individuals are denied quality mental health services in a society that can meet individual needs and provide adequate support for long-term rehabilitation. The Mental Health Council of Australia stated that the disproportionately high number of individuals incarcerated with a mental health condition is directly linked to a failing mental health system, a lack of existing services, and a lack of carers who can provide crisis aid. 

Commonwealth’s Role in Mental Illness and the Justice System

One of the most important aspects to consider is the Commonwealth’s role in society and the justice system. The Australian Government has no power to legislate criminal law, with each state and territory directly responsible for criminal activity and legislation in its own jurisdiction—and the mental health of its prisoners. 

The Commonwealth has stated its concerns over the rising costs of Medibank, Medicare, and the Pharmaceutical Benefits Scheme, all of which could be improved to help prisoners receive benefits and more care while incarcerated. 

Furthermore, the cost of providing prisoners with healthcare is extensive — NSW alone spent nearly $70 million in one year. However, directing more funds towards prisoner care, including healthcare, therapy, and support services, could potentially reduce recidivism rates and help provide adequate mental health care. 

Mental Health Applications in the Local Court

Section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 provides that a person who is charged with a criminal offence in New South Wales and is suffering from a mental health or cognitive impairment can avoid a criminal conviction if it is more appropriate to deal with the person by way of a treatment plan than punishment. 

To qualify for section 14, the defence team will have to establish that:

1. You suffer from a mental health or cognitive impairment (which can be established by obtaining a mental health report, and 
2. It is more appropriate to deal with the person by way of a mental health plan than otherwise in accordance with the law. 

A successful section 14 application will mean that the magistrate will dismiss the charges, and order you:

1. Into the care of a responsible person (eg see a nominated psychologist at regular intervals, 
2. To a place of treatment (eg residential rehabilitation), or
3. To be discharged unconditionally (which is rare, as the magistrate will normally want you to undergo or continue some form of treatment).

The order can last up to 12 months during which the person will need to abide by the conditions of the mental health plan.

Importantly, a successful section 14 application means there is not finding of guilty.

Going to Court?

If you are going to court for a criminal offence and believe you may be suffering from a mental health impairment or cognitive impairment, call Sydney Criminal Lawyers today to arrange a free first conference with an experienced lawyer who will guide and support you through the process, and fight to persuade the court that you should be dealt with under a treatment plan rather than be convicted and receive a criminal record and penalty.