Envisioning Next Generation Mental Health Courts for Australia

Dr Liz Richardson1

Australasian Institute for Judicial Administration and the Australian Centre for Justice Innovation at the Faculty of Law Monash University

Abstract

Mental health courts have operated in Australia, the United States and Canada since the late 1990s. Growing evidence suggests that some of these courts have positive results for some offenders in reducing recidivism and bringing about improvements to health and wellbeing for participants. However, there has been little critical reflection on whether there have been unintended consequences or anti-therapeutic impacts such as net-widening arising from these courts. This paper considers the ways in which net-widening can occur using the theoretical framework of wider, denser and different nets to analyse the policies and procedures of mental health courts. It also considers the strands of logic underpinning the rationale of these courts. Based on this analysis the paper outlines the model for next generation mental health courts In Australia including recommendations to reconceptualise the rationale, objectives and target group of these courts and to address the problematic policies and practices of mental health courts by way of legislation, procedural manuals, and evaluation.

Bio

Dr Liz Richardson BA LLB MCrim Phd is the ICCE Officer at the Secretariat of the International Consortium for Court Excellence based at the Australasian Institute of Judicial Administration. She is also Senior Research Fellow at the Australian Centre for Justice Innovation at Monash Law Faculty. Liz recently completed her PhD at Monash University entitled ‘Envisioning Next Generation Mental Health Courts for Australia’. Her research interests are problem-oriented courts, diversion and intervention programs, therapeutic jurisprudence, sentencing, criminology, criminal law, self-represented litigants, judicial and court administration.

The Assessment and Referral Court (ARC) List & Borderline Personality Disorder (BPD) – are they compatible?

Glenn Rutter1, Brianna Chesser2, Glen Hardy3

1 Magistrates’ Court of Victoria, GPO Box 882, Melbourne, Victoria, 3000.  Glenn.Rutter@courts.vic.gov.au

2 Australian Catholic University, 115 Victoria Pde, Fitzroy, Vic, 3065.  Brianna.Chesser@acu.edu.au

3 Magistrates’ Court of Victoria, GPO Box 882, Melbourne, Victoria, 3000.  Glen.Hardy@courts.vic.gov.au mailto:Glenn.Rutter@courts.vic.gov.au

There is evidence that individuals who meet the criteria for a diagnosis of Borderline Personality Disorder (BPD) are over-represented in the criminal justice system. However, the behaviours and patterns of relating associated with BPD pose particular challenges for therapeutic jurisprudence programs that attempt to work with them.

The Assessment and Referral Court (ARC) List is a specialist court list in Victoria established to address the needs of accused persons who have a mental illness/cognitive impairment.  Operating at the Melbourne Magistrates’ Court the ARC List combines a problem solving court approach with case management support for accused persons.

The ARC List has received over 1100 referrals since its inception in 2010.  It has improved participants’ quality of life, reduced reoffending and provided participants with the opportunity to address the underlying causes of their offending behaviour.  The extent to which participants embrace the ARC List is reflected in the 80% completion rate of those accepted onto the program.

This paper examines the outcomes of over fifty participants with BPD who have participated in the ARC List and explores their interactions within the program.

 

Lessons from the coalface: Critical reflections of a lawyer working in the Victorian Assessment and Referral Court List

Tania Wolff

First Step Legal

This paper reflects on the experiences of a legal practitioner who has been involved in the ARC list, Victoria’s mental health court, as a legal practitioner since its inception in 2010 and who has witnessed first hand the positive impact of the court on a variety of clients with differing levels of functioning and complexity of mental illness. This paper draws on a number of case studies to argue that the court has proved to be a touchstone of therapeutic jurisprudence and non-adversarial justice for the vulnerable; where the theory seamlessly aligns with the practice. However, despite the success of the list and the model, this paper also reflects on its limitations which challenge the Court’s ability to be an optimal therapeutic agent.

Biography

Tania Wolff is an Accredited Specialist in Criminal Law by the Law Institute of Victoria and appears regularly as a solicitor advocate in court. Since 2012 she has been the Principal Lawyer of First Step Legal, a specialist, criminal law focused CLC within a mental health and drug and alcohol treatment and rehabilitation clinic. Prior to this role, Tania has worked in private practice in commercial law and as in house legal counsel before working as a criminal lawyer with David Grace QC. She has a particular focus on drug and alcohol related criminal offending and a commitment to advancing therapeutic jurisprudence and justice reinvestment initiatives.

Pilot to Permanency: The Ongoing Journey of the WA Mental Health Diversion Court

Magistrate Felicity Zempilas1, Dr Adam Brett2, Mark Edmunds3

1 START Court (Mental Health Service) Perth Magistrates Court 501 Hay St PERTH 6000 Magistrate.Zempilas@justice.wa.gov.au

2 START Court (Mental Health Service) Perth Magistrates Court 501 Hay St PERTH 6000 adam.brett@health.wa.gov.au

3 START Court (Mental Health Service) Perth Magistrates Court 501 Hay St PERTH 6000 mark.edmunds@health.wa.gov.au

START (Mental Health Diversion) Court commenced as a pilot in WA in 2013. In 2016 it obtained funding via the Mental Health Commission to operate for a further three years.

START Court is a therapeutic sentencing court for offenders with a mental illness supported by a multidisciplinary team, including a dedicated magistrate, prosecutor and duty lawyers as well as psychiatrists, mental health nurses, social workers, peer support and community outreach workers. It operates four days per week in Perth Magistrates’ Court.

The development and operation of START Court presents many practical and philosophical challenges but some clear ideas have emerged about what works and what still needs to be done to ensure its success, in circumstances where success is measured not only by the satisfaction and performance of participants but also by government agencies who hold the purse strings.

Key strengths will be a quality evaluation, multidisciplinary/interagency co-operation and teamwork, a clear and consistent framework for the operation of the court, strong perceptions of procedural fairness by participants and consistency of staff attached to the court.

Key challenges include effectively measuring the performance of the court, ensuring co-occurring treatments needs are adequately addressed and given sufficient weight, selecting appropriate participants and setting a framework that adjusts to the rapidly fluctuating circumstances of participants.

The presentation aims to explore the experience of START Court in WA to draw from the lessons learned and identify ways in which the court can progress from a pilot to a therapeutic court which is firmly entrenched in the court structure.

Biography:

Magistrate Felicity Zempilas is the designated START (Mental Health Diversion) Court Magistrate. Dr Adam Brett is the psychiatrist attached to START Court and Mark Edmunds is the manager of the clinical team attached to START Court.

Adam Brett is a Consultant Psychiatrist from Perth, WA, works at the WA Mental health court, also provides private reports for the criminal justice system, works in Busselton mental health and for the Autism Association of WA.

Mark Edmunds is currently employed as the Start Court Clinical Nurse Manager. I have over 20 year’s experience working predominantly in community mental health services, both as a clinician and in management. I genuinely enjoy helping disadvantaged individuals reach their goals whilst also providing a supportive and positive environment for team members.  I have recently commenced as a Master of research student, soon to begin my study in the Start Court. I have intermittently ventured into the private sector, not in health but as a Indian takeaway owner and property developer. So my hobbies or pastime includes trying new curries and lots of home renovations!

Improving Retention in Treatment in the South Australian Magistrates Court Treatment Intervention Court.

Ms Sue King1, Magistrate Brett Dixon1, Ms Laura Capozzi3

1Courts Administration Authority, Adelaide, Australia, 2Courts Administration Authority, Adelaide, Australia, 3Offenders Aid & Rehabilitation Services Inc., Adelaide , Australia

This paper is in two parts – it provides an overview of the Treatment Intervention Court operations and then describes a new initiative to improve motivation to change and increase participation and engagement in the court funded therapeutic treatment program. This in turn has assisted in compliance and completion of overall program requirements.

The South Australian Magistrates Court Treatment Intervention Court incorporates treatment streams for offenders with mental impairment: substance dependence and co-morbid issues. There is a 6 month long substance dependence stream and a 12 month stream (formally known as the Drug Court).

There is evidence that participants that complete drug court treatment are less likely to reoffend than those who do not, the low completion rates in programs are an ongoing source of concern.  While some researchers have suggested that low completion rates reflect poorly upon the functioning of drug court programs and significant practice changes are necessary – this ignores two other important considerations: substance dependence is it a chronic and relapsing illness and for some offenders their participation is motivated by the desire to avoid prison rather than the desire to stop using drugs.

Determining who is motivated to change and therefore who is treatment ready is an important part of the assessment process and research has shown that offenders who are assessed as ‘treatment ready’ demonstrate increased engagement in treatment and reduced attrition rates which consequently leads to a reduction in recidivism. Motivation to change contributes to treatment readiness and it’s important to address this prior to treatment to increase a participant’s chances to remain in treatment and on the Program.

The SA Magistrates Court runs a Treatment Intervention Court along the lines of a traditional Drug Court model. Screening for treatment readiness was introduced into the assessment process using the URICA – University of Rhode Island Change Assessment Scale in additional to information from the assessment interview to improve the identification of defendants who are motivated to change their drug use and those who have no intention of changing or are still just thinking about change. Those who were assessed as not treatment ready were not recommended to participate.

However as motivation to change is a dynamic process this front end strategy did not stop people relapsing into drug use when their motivation levels dropped.  Other strategies used by the Magistrate and the case managers to encourage and maintain motivation include regularly seeking feedback from participants using a survey tool develop in consultation with Dr Andrew Day and use of rewards and motivational interviewing techniques.

One solution to the problem of how to widen access to the Treatment Intervention Court for those offenders who need treatment but are not treatment ready and to assist participants who are at risk of program termination has been the introduction of a pre-treatment Treatment Readiness group program, developed by OARS Community Transitions, the non-government organisation who delivers treatment services for the Treatment Intervention Court.

The second half of the paper will discuss the aims of the treatment readiness group and describe how it has been utilised in the Treatment Intervention Court to improve access to more participants and to improve retention in treatment and compliance with program requirements.

Biography:

Laura manages the Clinical Services Programs at OARS which include: Drug and Alcohol Treatment Services; Domestic Violence Services; Gambling Services; Comorbidity and Court Programs. She also has a policy role within OARS and undertakes  regular evaluation of programs to look at ways to improve service delivery and outcomes for clients. She has a Masters in Psychology (Forensic) and the focus of her thesis was looking at the South Australian Treatment Intervention Court (TIC) Dropout. Specifically she investigated ways to improve retention in the treatment provided to participants completing Drug Court Programs. She has been employed with Offenders Aid and Rehabilitation Services (OARS) since 2011 and is an experienced facilitator of MRT and DV/MRT group programs for offenders referred from the magistrates court.   She  presented at the National Family and Domestic Violence Conference in 2015. She has  experience in counselling and group therapy using a variety of therapeutic techniques including Cognitive Behavioural Therapy (CBT), Motivational Interviewing, Acceptance and Commitment Therapy and Relapse Prevention.

 

Brett Dixon studied Law at Adelaide University, graduating in 1978.  Completed articles of clerkship in 1978, and began practice in general practice for Cleland and Co, primarily in areas of criminal law, matrimonial law and injury claims.Purchased the Elizabeth branch office of Cleland and Co in 1981, and then worked entirely in that area building the practise from a 3 day a week branch office, to a thriving general practise with 4 solicitors.

Mr Dixon found special interest in criminal law and developed a large clientele, predominantly consisting of clients from lower socio-economic backgrounds, many of whom had drug and/or mental health issues as factors contributing to offending behaviour.  This experience, particularly at a time when court run rehabilitation programs were thin on the ground, has been a helpful introduction into the work that Mr Dixon is now involved with in the Treatment Intervention Court.Mr Dixon was appointed to the bench in 2009, and has been the Magistrate running the Treatment intervention Programs in the Adelaide Magistrates Court since March 2015.

 

 

An Examination of Stakeholder Attitudes and Understanding of Therapeutic Jurisprudence in a South Australian Mental Health Court.

Dr. Loraine Lim1

1 Forensic Psychologist, 245 Sturt Street, Adelaide South Australia 5000, limloraine@gmail.com

Mental health courts represent a key component of contemporary responses to mental illness and disability in the criminal justice system, and yet there is uncertainty about how these courts should balance their punishment and treatment roles. This presentation will report an analysis of interviews with court professionals, which considered their understanding of the rationale underpinning the South Australian mental health diversion court, its effectiveness in achieving its criminal justice and clinical goals, and of the broader notions of therapeutic jurisprudence. The interviews generally revealed considerable support for diversionary mental health court programs of this type and professional confidence that this type of program is effective. However, thematic analyses conducted also highlighted conflict in the practice frameworks of the different professional groups who regularly contribute to the operations of the court. This presentation will conclude with suggestions as to how mental health courts in Australia can overcome its functional and operational challenges by integrating theoretical knowledge with practical strategies.

Biography:

Dr Lim was employed in South Australia’s Drug Court, Magistrates Court Diversion, and Treatment Intervention Programs for close to a decade. She is currently a Forensic Psychologist in private practice in South Australia, and an adjunct Senior Clinical Lecturer at the University of Adelaide. She completed her PhD through Deakin University in Victoria whilst she was still employed with the South Australia’s Court Administration Authority (CAA), where she conducted a series of research on their mental health diversion and co-morbidity court programs. She continued to be involved in research and evaluations of these programs in SA, post-doctorate, until she left the CAA late last year (2016).

Developing a Mental Health Court in Western Australia: Dealing with Competing Views

Mr Kevin  Tavener1

1WA Magistrates’ Court, Perth, Australia

The Start (mental Health) Court initially followed the standard drug court model, but changes have been introduced which reflect the individualised focus of the court and the participants.  The court deals with an increasingly broader range of mental health presentations and criminal charges, having   moved from relatively simple offences to persons facing imprisonment, including mandatory imprisonment.

The court’s tolerance towards drug use is different from the drug court and is reflective of the person’s particular mental health problems.  Experience has shown the best approach is to make a thorough individual assessment and establish a multi-disciplinary program to address the particular criminogenic needs. The court’s practices reflect its growing experience and, for example, we have sought to identify means by which the judicial officer can add value to the court.

The court works with an integrated clinical team, community corrections and an Outcare supplier which provides psychiatric assessments, psychological support as well as accommodation, training and living skills. The court accepts people most offences, as well as referrals from the District and Supreme courts, except for those persons who present as a risk.  A participant must be on bail, which the court can grant after consideration of the particular circumstances.

As a pilot program (3 year funding now approved) the Treasury Review required the Court to prove it saved money, by reducing offending and presentations to mental health hospitals. Treasury was satisfied the Court achieved that outcome.  One consequence is the Start Court magistrate has responsibility for the separate intellectual disability court.

There are intrinsic tensions between the legal and mental health systems, such as deciding on priorities in relation to an individual’s mental health and criminogenic needs. The underlying theory is to promote long-term stability, which often starts with accommodation and/or immediate mental health interventions. The sentencing process is a challenge when there has been a prolonged interaction between the defendant and the court.

Biography:

Prior to becoming a Magistrate, Kevin was a barrister working in criminal law and asset forfeiture.  He has been a UN War Crimes Prosecutor, a lecturer in International Human Rights Law and a Mining Warden. He holds Masters degree in Taxation, International Law and Criminology.  Since 2014 he has been the Magistrate assigned to the Start (Mental Health) Court operating from the Perth Central Law Court.

About the Association

The Australasian Institute of Judicial Administration (AIJA) is a research and educational institute associated with Monash University. It is funded by the Law, Crime and Community Safety Council (LCCSC) and also from subscription income from its membership.

The principal objectives of the Institute include research into judicial administration and the development and conduct of educational programmes for judicial officers, court administrators and members of the legal profession in relation to court administration and judicial systems.

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