Bulletin

Issue: August 2004

News

Courting change

'Prisons - asylums of the new millennium - are brimming with the mentally ill.'

Two reports by La Trobe University law students have recommended changes to the court system to help mentally ill, poor and other disadvantaged people.

Written by law students on Clinical Legal Education Placement at the West Heidelberg Community Legal Service, the reports recommend the establishment of a special court for the mentally ill, and changes in the working of the PERIN Court. Lecturer in La Trobe Law, Liz Curran, who supervised the two projects, says the students recommend establishing a Mental Health Court to deal with the high number of mentally impaired people appearing before Victorian courts.

Their report - titled The Mentally Ill and the Criminal Justice System - says the court should be an extension of the Magistrate's Court, presided over by a specially appointed magistrate to ensure a consistent approach. A charged person with a mental illness should then have the right to elect to be tried either by the Mental Health Court or a normal court.

The court should also adopt a less adversarial approach than a traditional court. Mentally ill people, including those with intellectual disability, often struggle in adversarial courts, the report argues.

The students say a recent study found that 28 per cent of Victorian prisoners had been diagnosed with a mental illness. As a result, the prison system is becoming one of the principal vehicles for managing mental illness related to criminal behaviour.

Prisons - which the report describes as the 'asylums of the new millennium' - are brimming with the mentally ill. De-institutionalisation, while supposedly upholding the rights of the mentally ill, has often resulted in further abuses of, and discrimination against, mentally ill people, the report claims.

Research also shows overcrowding in women's prisons has created an 'incredibly stressful environment' where lack of privacy creates additional tensions escalating to violent outbursts.

Another problem is that scant provision is being made for mentally ill prisoners to re-enter the community. Few release plans are being developed with prisoners for their accommodation, employment, welfare or continuing treatment after release.

Often when courts found defendants had a mental impairment and should not be sent to jail, they were imprisoned because there was a shortage of beds at the Thomas Embling Hospital, one of few 'approved mental health service' hospitals in Victoria.

While the report acknowledges that there are multiple alternatives to jail for mentally ill offenders, it says these are 'desperately under resourced'.

The primary focus of a Mental Health Court should be on treatment and rehabilitation, to reduce the rate of re-offending, the report concludes. It notes that a Mental Health Court has been set up in South Australia to apply the principles of 'therapeutic jurisprudence'.

back to top

back contents next