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Public Defenders. Criminal Law Conference 2013. What happens to Forensic Patients?. Olav Nielssen. Presentation plan. Background and recent history Outline of forensic mental health services Results of forensic patient study Conditional release and court directives MHRT decisions

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Criminal law conference 2013

Public Defenders

Criminal Law

Conference 2013

Presentation plan
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


  • McNaughten Rules, Porter test and Gomaa

  • Deinstitutionalisation

  • 1990 Mental Health Act

  • Construction of new hospitals for growing number of patients

  • Types of Forensic Patients

Forensic mental health system
Forensic mental health system

  • Mental Health Screening Unit at AgH2O

  • 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

Criminal law conference 2013

  • 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?

Do people malinger ngmi
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)

Forensic patient study
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

Study team
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


  • 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


  • 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

Forensic patients 1990 2010
Forensic patients 1990-2010





Unconditional Release Status


Direct to UCR (n=9)

Pathway to UCR unknown (n=2)

CR to UCR (n=74)

Conditionally Released (n=185)

Conditional Release Status


Bail and disposal from court
Bail and disposal from court

  • After receiving bail, 81% detained and 18% given Conditional Release (Significantly more than if not granted bail; X2 = 26.1, p<001)

  • Higher for women than men

Criminal law conference 2013

Sig levels

* p<.05

** p<.01

*** p<.001

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.

Criminal law conference 2013

NGMI homicide offenders: Time to unconditional release all stages

Post NGMI verdict:

5 years 90% still FPs

7 years > 80%

10 years > 70%

Leave and community access
Leave and community access all stages

  • No leave from maximum security

  • Graded leave privileges in medium security

  • Escorted, supervised, unsupervised

  • Ground, specific areas and then overnight leave

Mhrt considerations s74
MHRT considerations – S74 all stages

  • 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

Conditional release conditions
Conditional release conditions all stages

  • 20 standard conditions

  • Require a service, psychiatrist and case manager

  • Responsible for drug tests, checking adherence, reporting breaches and six monthly reports to MHRT

Can a judge direct where a forensic patient should be held
Can a judge direct where a Forensic Patient should be held? all stages

  • 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”.

Bed flow committee
Bed flow committee all stages

  • 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

CFMHS all stages

  • Independent report writing body

  • Risk assessment for MHRT, health services

  • Do notprovide any treatment

  • Now delaying release and adding to backlog?

Re hospitalisation and revocation of conditional release
Re-hospitalisation and revocation of conditional release all stages

  • About half returned to hospital, mostly once or twice

  • A quarter had their conditional release revoked

Revocation of conditional release1
Revocation of conditional release all stages

Number of


1x: 18%

2x: 6%

3x: 2%

4x: 1 patient

Re offending by forensic patients
Re-offending by forensic patients all stages

  • 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

Criminal law conference 2013

Offending after conditional release all stages

% with no charges:

97% @ 6m

94% @ 1year

91% @ 2years

84% @ 5years

Criminal law conference 2013

Violent offending post conditional release all stages

9% charged with a

violent offence

4% convicted

Criminal law conference 2013

Offending after unconditional release (31.7.11)

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

Substantial impairment and limiting terms
Substantial impairment and limiting terms (31.7.11)

  • 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

Conclusions (31.7.11)

  • 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

Criminal law conference 2013

Public Defenders (31.7.11)

Criminal Law

Conference 2013