Powers of the courts and the executive:

  • There are almost certainly many defendants who could invoke the Criminal Law (Mentally Impaired Accused) Act but do not do so. Lawyers are probably not invoking the Act due to the risk of custody orders being imposed.
  • Discretion and flexibility are essential to doing justice and achieving community safety whenever an accused person has a mental impairment. The Act does not give the courts sufficient flexibility, especially in cases of unfitness to stand trial. Courts should have the option of community based supervision not just unconditional release or a custody order.
  • Currently, the procedures for overseeing custody orders lie with the executive arm of government, including the Board, the Attorney General and the Governor. Consideration should be given to streamlining these processes and also to injecting a degree of judicial oversight. Courts could be given the authority to oversee custody orders or, at least, to review them every one or two years.
  • Consideration should be given to setting a ‘limiting term’ when a custody order is made, as in other jurisdictions.

People held under custody orders:

  • Sixty three people, mostly male (95 per cent) and mostly adults (92 per cent), have been held on custody orders since the inception of the Act,
  • Around 30 per cent of people held under custody orders were Aboriginal.
  • Almost half of the non-Aboriginal people were facing charges of murder or attempted murder. Only 11 per cent of the Aboriginal people faced such charges and Aboriginal people are generally held under the Act for much less serious alleged offences. (Read more)
  • Aboriginal people were far more likely to be detained in prison than an authorised hospital. In many cases, they are being held far longer than their offence would normally warrant. (Read more)
  • Despite the limited places, over half (57%) the people ever held under the Act were placed in an authorised hospital. These people have generally been charged with significantly more serious offences than those held in prison, with more than half of the hospital detainees held for murder or attempted murder. Regardless these people tended to progress to release faster than people placed in prison. (Read more)
  • Over half of the hospital detainees have been discharged from the Act compared with only a quarter of those placed in prison.
  • All those with a cognitive impairment are held in prison because there are no other alternatives. People with a treatable mental illness may also be held in prison due to the shortage of secure forensic mental health beds. (Read more)  Prison is an inappropriate place for these people to be accommodated, leading to institutionalisation and increased risk of violence. (Read more)
  • Co-ordination and communication between stakeholders planning the release of people under the Act
    • is better in the mental health system (Frankland) than in prisons.
    • has improved in recent years for those held in prisons but remains fragmented.



Page last updated: June 9, 2014