While there were 800 fewer Children’s Court cases in 2021 than in 2017,the court dismissed almost 200 more cases due to mental health reasons.
The shift is due,in part,to a law change in March last year that widened the legal definition of what may be considered mental illness or cognitive impairment. Extra mental health nurses working in the court system and some unexpected consequences of the COVID-19 pandemic have helped too.
NSW Justice Health in correctional centres,youth justice centres,courts,police cells,inpatient settings,and in the community.
Samantha Lee is a solicitor in the police accountability practice at Redfern Legal Centre.Supplied
Redfern Legal Centre police accountability solicitor Samantha Lee said the pandemic led more people to contact support services,giving them solid evidence of illness to challenge court charges and an avenue of appeal under mental health grounds that they would not otherwise have had.
“I think issues of mental health stress have been raised by my clientele more than previously and the court seems more open or sympathetic to that application,” Lee said.
Mental health pleas have been used successfully for minor property offences and drug offences,and even a scooter fine,but not so much for violent acts,she said.
Shopfront Youth Legal Centre in Darlinghurst sees a few hundred clients per year and does a lot of mental health and cognitive impairment diversionary applications for them.
Principal solicitor Jane Sanders said awareness,education and understanding of mental health issues,particularly cognitive impairment,among magistrates has helped.
“The law used to refer to developmental or intellectual disability,leaving in doubt things like acquired brain injury,dementia and foetal alcohol spectrum disorder – but now there’s a definition that specifically includes these conditions,” Sanders said.
Jane Sanders is a principal solicitor at Shopfront Youth Legal Centre in Darlinghurst.Fiona Morris
“Also,the increased availability of the justice health nurses at local courts and children’s courts to do assessments has helped.”
These nurses operate in 22 NSW local courts providing assessments and,where appropriate,make recommendations to the magistrate for diversion to treatment. An extra $13.4 million has been allocated in the 2022/23 budget to expand the service to additional locations.
NSW Bureau of Crime Statistics and Research director Jackie Fitzgerald said we don’t have “a good picture” about the level of mental disability of those in contact with either the police or court.
“There’s a general appetite to treat those people and deal with them outside the formal,punitive justice system and we’re seeing that in increased diversions and other policy changes that encourage the use of those but I don’t think they’re driving the steady increase[in the mental health acquittals],” Fitzgerald said.
Knowledge about mental health in the justice system is “a bit of an information gap”,she said,but BOCSAR has a new study coming out later in the year linking NSW Justice records to Commonwealth disability information,and that will give “a much richer picture of the nature of disability” among victims and offenders.
A NSW Department of Communities and Justice spokeswoman said the Local Court has had the power to dismiss charges against defendants and divert them into care or treatment since 1983,but diversion is not available to people facing more serious charges in the District or Supreme Courts.
“Increased awareness of mental and cognitive impairment in the community and justice system is more likely a contributing factor[to the rise in cases being dismissed on mental health grounds],” she said.
Offenders with a serious mental illness who receive a treatment order from the court rather than a punitive sanction had reoffending rates 12 per cent lower than those who were punished by court orders,a recent found.
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