Forensic Mental Health Policy and Recidivism in Australia

Introduction

As a probation and parole officer in Australia, one of the major issues that must be addressed through best practice is dealing with mentally ill offenders. This is an emerging issue requiring suitable programs and support to lessen recidivism. The significance of addressing this issue is evident in the substantial attention given to offenders with mental illness in recent years, largely because of their prevalence and poor outcomes. Most of this attention has centered on whether offenders with mental illness pose a greater risk of dangerousness and how to effectively evaluate and manage that risk. While the increased focus has contributed to the creation of various interventions, these services have poorly matched the policy objective of lessening recidivism (Skeem, Manchak & Peterson, 2011, p. 110). In light of the increasing prevalence and poor outcomes associated with mentally ill offenders, establishing best practice would help provide suitable programs and support to lessen recidivism.

Summary and Overview of the Problem

According to Wang et al. (2005), offenders with mental health issues who are on probation and parole continue to struggle with several issues on their own and slip through the cracks (p. 603). This indicates that there are unaddressed concerns that may in turn contribute to the risk of recidivism for these individuals. One of the major indicators of the seeming ineffectiveness of forensic mental health legislation is the high proportion of indigenous offenders with mental health problems. Mentally ill offenders tend to receive inadequate treatment or inappropriate medication dosages because incarceration facilities are generally ill-equipped to deal with mental illness.

The current mental health legislation is not adequately supportive of mentally ill offenders who are on probation and parole services. The current experience of many mentally ill offenders in indigenous communities demonstrates that courts are increasingly reluctant to agree to their release or return to the community because of a lack of necessary formal support (Hunter, n.d.). Since Mental Health Services exist primarily in larger cities or regional areas, offenders from indigenous communities are more likely to be released to these areas, provided they can secure accommodation there. The current approach to release on bail fails to recognize the significance of family and community in the healing process of offenders with mental illness. Indigenous people generally place a strong emphasis on relationships with family members and the broader community. The failure to acknowledge these relationships makes it difficult to provide adequate help to mentally ill offenders, especially within probation and parole programs.

While services for offenders with mental health concerns do exist in indigenous communities, they are usually underfunded and operating beyond capacity, making them inaccessible to all individuals who need them. Access to these Mental Health Services is therefore limited and dependent on various factors, including the timing of community visits by a practitioner and the availability of appointments. Moreover, people who need closer attention do not usually receive it because of accessibility issues and the minimal number of beds in Mental Health Units.

There have been numerous attempts to address these issues through increased interest in whether mentally ill individuals pose an elevated risk of dangerousness and how to effectively evaluate and manage that risk (Gagliardi, 2004, p. 133). However, there is minimal research and literature on the risk posed by mentally ill offenders released from prisons. Freckelton (2004) states that existing research associated with mental illness and the law has primarily focused on when mentally ill offenders are required to avail themselves of a defense of not guilty by reason of mental impairment or insanity (p. 375). Decisions on whether offenders found innocent under such pleas should be released back into the community entail complex analyses of the risk of recidivism — a risk that is particularly difficult to examine when dealing with offenders who have carried out serious violent acts while mentally ill.

The increased attention has contributed to the development of legislative initiatives and policy measures that focus on addressing the issue of mentally ill offenders. An example of relevant legislation is the 1997 Mental Impairment and Unfitness Act, through which an individual may be declared legally accountable to supervision. This supervision may be custodial — served in prison or a forensic hospital — or non-custodial — served in the community through probation and/or parole programs (Freckelton, 2005, p. 377). Notably, non-custodial supervision is granted once the court is satisfied that the mentally ill offender will not endanger the safety of community members upon release.

The recent increased attention has also resulted in the development of a number of interventions, particularly for indigenous communities. Since these interventions are based on mental illness as the primary source of the problem, they focus on psychiatric services, which may poorly match the policy objective of lessening recidivism. Even though the main goal of legislative and policy initiatives is to eventually reduce recidivism, the interventions developed to date appear to be ineffective in accomplishing this goal.

Therefore, mental health legislation, policies, and interventions have largely been ineffective in ensuring the provision of suitable programs and support to reduce recidivism, particularly during probation and parole. Policy measures, legislative initiatives, and interventions have been characterized by high prevalence of mentally ill offenders and poor outcomes. This analysis is geared towards identifying areas of weakness in the criminal justice system, articulating policy gaps, and providing recommendations for improved practice. According to Skeem, Manchak & Peterson (2011), more efforts should be directed towards developing a specific evidence base and increasing the understanding of specific reasons for recidivism among mentally ill offenders released under correctional supervision (p. 122). These efforts should focus on providing valuable insights for policy reforms that effectively address the problem and contribute to the effectiveness of probation and parole programs in reducing recidivism through the provision of necessary support services.

Critical Analysis of the Problem

One of the most important aspects of probation and parole programs and services in Australia is dealing with mentally ill offenders in order to provide suitable programs and support to lessen recidivism. Australia's criminal justice system has been characterized by a high prevalence of mentally ill offenders and poor outcomes. These offenders tend to have considerable criminal histories and are more likely to have been imprisoned for a violent crime compared to other inmates. Mentally ill offenders in Australia represent a unique population distinct from other offender groups (Gagliardi, 2004, p. 134).

The increase in the prevalence of mentally ill offenders and poor outcomes in Australia is coupled with a high proportion of indigenous offenders placed on probation and parole (Australian Institute of Health and Welfare, 2012). Indigenous communities in Australia largely live in rural environments and do not share the same lifestyles as communities in larger cities and metropolitan areas. Indigenous communities also hold different values and beliefs, which sometimes affect their willingness to accept local laws and legislative decisions.

Despite the need for increased availability of essential diversion programs and support services, the current experience of many mentally ill offenders in indigenous communities reflects a widespread reluctance to grant release on bail. Courts and Mental Health Services in these communities are reluctant to grant such offenders probation and parole. This reluctance is partly attributed to the widespread lack of adequate formal support available to mentally ill offenders. In some cases, these offenders are paroled to Mental Health Services in larger cities or regional areas, provided they can arrange accommodation. Nonetheless, such measures may be ineffective because they do not recognize the significance of family and community in the recovery process — particularly important given that indigenous people place a strong emphasis on these relationships. The existing Mental Health Services in indigenous communities face several problems that contribute to their inaccessibility, including underfunding and operating beyond capacity (Hunter, n.d.).

The case of Mental Health Services for mentally ill offenders in indigenous communities reflects the broader challenges Australia's criminal justice system faces in dealing with mentally ill offenders in the context of probation and parole programs. The country's criminal justice system has adopted various initiatives to address the issue, such as legislative and policy measures and the development of different interventions. Examples include the enactment of the 1997 Mental Impairment and Unfitness Act and the Mental Health Act 2000. However, some of these regulations are based on unexamined assumptions — such as recently enacted laws to detain or supervise sex offenders considered dangerous after the expiry of their sentences (Doyle & Ogloff, 2009, p. 179). These laws largely ignored a large body of empirical knowledge on sexual offending and risk prediction.

The 1997 Mental Impairment and Unfitness Act has been effective in helping courts determine whom to place on supervision. However, assessing whether the policy's goals are being accomplished is relatively difficult, given that a large number of mentally ill offenders are being downgraded to extended status during custodial supervision orders. Moreover, offenders who have been released into the community's care have had their supervision orders revoked. In contrast, the Mental Health Act 2000 has helped determine how an individual should be processed through the criminal justice system or mental health system with reference to their mental health issues. However, this legislation presents several challenges, including the likelihood of mentally ill offenders receiving unsuitable sentences as a result of being processed through a mainstream non-specialized court (Hunter, n.d.). These offenders are often punished for offenses for which they were not criminally responsible or cannot remember committing.

References

Australian Institute of Health and Welfare. (2012). Mental Health Services in Australia. Retrieved from Australian Government website: https://mhsa.aihw.gov.au/home/

Doyle, D., and Ogloff, J. (2009). Calling the tune without the music: A psycho-legal analysis of Australia's post-sentence legislation. The Australian and New Zealand Journal of Criminology, 42(2), 179–203.

Fellner, J. (2006). A corrections quandary: Mental illness and prison rules. Harvard Civil Rights-Civil Liberties Law Review, 41, 391–412.

Freckelton, I. (2005). Applications for release by Australians in Victoria found not guilty of offences of violence by reason of mental impairment. International Journal of Law and Psychiatry, 28, 375–404.

Gagliardi, G., Lovell, D., Peterson, P., and Jemelka, R. (2004). Forecasting recidivism in mentally ill offenders released from prison. Law and Human Behavior, 28(2), 133–155.

Hunter, E. (n.d.). Australian Senate Select Committee on Regional and Remote Indigenous Communities — Mental Health. Aboriginal & Torres Strait Islander Legal Service (Qld) Ltd.

Matejkowski, J., Draine, F., Solomon, P., and Salzer, M. (2011). Mental illness, criminal risk factors and parole release decisions. Behavioral Sciences and the Law, 29, 528–553.

Ogloff, J., and Davis, M. (2004). Advances in offender assessment and rehabilitation: Contributions of the risk–needs–responsivity approach. Psychology, Crime & Law, 10(3), 229–242.

Skeem, J., Manchak, S., and Peterson, J. (2011). Correctional policy for offenders with mental illness: Creating a new paradigm for recidivism reduction. Law and Human Behaviour, 35, 110–126.

Wang, P. S., Berglund, P., Olfson, M., Pincus, H. A., Wells, K. B., & Kessler, R. C. (2005). Failure and delay in initial treatment contact after first onset of mental disorders in the National Comorbidity Survey Replication. Archives of General Psychiatry, 62(6), 603–613.