Indefinite detention of people with cognitive and psychiatric impairment in Australia

Submission to the Commonwealth Community Affairs References Committee
13 April 2016

People with cognitive and psychiatric impairment in NSW can be detained as forensic patients in a mental health facility, prison, or such other place as the Mental Health Review Tribunal may determine.

Although there is the capacity for indefinite detention under the NSW legal framework, there are extensive provisions designed to protect against arbitrary detention. People who are detained are subject to regular review and independent oversight by the Mental Health Review Tribunal. This framework is grounded on the principle that people with mental illness should receive the best possible care and treatment in the least restrictive environment possible.

Despite this overarching principle, and detailed legislative protections, people with cognitive and psychiatric impairments in NSW can remain in detention for longer than necessary and inappropriately detained, because of a lack of capacity in the forensic mental health system.

The timing of release can depend more on the availability of a medium secure bed, or adequate supports in the community, rather than on whether there is an end-date to a period of detention.

In Living Well: A Strategic Plan for Mental Health in NSW 2014-2024, the Commission highlighted the importance of strengthening community based responses to mental health needs and shifting our system away from managing acute crises. The same considerations apply to the forensic mental health system.

The Commission submits that there is room for improvement in the NSW forensic mental health system. This submission raises a number of possible areas for improvement which are relevant to the Committee’s terms of reference.

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