Indefinite incarceration - human rights at work in NSW

New South Wales is one of the few jurisdictions in the world to retain a system of executive discretion regarding the release of forensic patients. Forensic patients are either: of unsound mind at the time of an alleged offence; or are permanently unfit for trial. In other words they have been found not guilty of a crime by reason of mental illness. Three hundred and six individuals in NSW are dependent on a minister’s discretion for their liberty.

Media articles last year highlighted that some individuals remain incarcerated indefinitely despite numerous recommendations by the Mental Health Review Tribunal that they should be conditionally released into the community. These individuals remain incarcerated because successive Ministers for Health have continued to exercise their legal right to ignore the tribunal’s recommendations.

If these individuals lived in any other state, other than Western Australia, the minister would not have this discretion over their release and liberty. If they lived in the ACT or Victoria, they would have a further tool by which to challenge their treatment - a Charter of Human Rights.

On paper, NSW is committed to human rights. Australia has signed the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR) and the Principles for the Protection of Persons with Mental Illness, all of which guarantee civil and political rights to people with mental illness. Yet, although these rights are recognised in NSW, they are not legally protected. A charter would provide such protection.

Executive discretion violates the civil and political rights of forensic patients set out in the ICCPR in three ways:

First, executive discretion violates forensic patients’ right to liberty If individuals are detained, despite tribunal findings that they are no longer mentally ill, their detention becomes arbitrary and indefinite. Evidence suggests that successive ministers have exercised their discretion in an ad hoc manner. The Mental Health Co-ordinating Council states that in 2000, the Government followed 70 per cent of the tribunal’s recommendations; in 2005, only 30 per cent of recommendations were followed.

Political expediency seems to trump human rights.

Second, executive discretion violates forensic patients’ right to equality. Prisoners without a mental illness found guilty of a crime are not subject to executive discretion; they are aware of the date of their release. Surely, forensic patients, who have been found not guilty, should be subject to more favourable treatment in terms of detention. Yet, due to reviews occurring only every six months, and no option of a non-parole period, forensic patients often inequitably serve longer sentences than prisoners pleading guilty.

Third, executive discretion violates forensic patients’ right to a fair hearing. They are given a hearing before the tribunal, but this body is only advisory - it does not have authority to discharge patients. Individuals are not given a fair hearing before the minister, who is the ultimate decision maker. This violates the principles of natural justice, as patients are unaware of the case against them. Further, there is no right of appeal, and the minister is not required to give reasons for their decision.

The abolition of executive discretion has been recommended for 15 years by eminent human rights, law reform and parliamentary bodies. NSW has implicitly committed to abolish the regime by agreeing to the Draft National Statement of Principles on Forensic Mental Health. Principle 12 states that decisions to release forensic patients should be made by Courts or statutory bodies independent of the political process.

An extensive review of the NSW Mental Health Act is currently underway, which may well abolish executive discretion. A Charter of Rights would have ensured that review took place sooner. If NSW had human rights legislation, such reviews would have a human rights framework within which to judge and evaluate proposed laws.

Similar reviews of mental health legislation are taking place in the UK and ACT, to ensure that their Human Rights Acts are complied with. A charter could bring human rights to the forefront of the discussion, forcing governments to actively take human rights into account when developing mental health policy, rather than doing so in an ad hoc way.