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Is a Mental Health Defence a Way Out

People charged with serious crimes who have an acute mental illness can often find themselves treated in mental health facilities, as opposed to being imprisoned in the corrective services system. Hence, there is always this rhetoric that it’s a soft option.

The recent escape by Justin Grant, a mental health patient who murdered his brother, from a Brisbane mental health unit has again raised some concerns about how people with mental illness charged with serious offences end up in supposedly soft locations that allow them to simply abscond.

Well, there’s a few issues I need to get across first.

The law in all states of Australia provides a defence to someone if at the time of committing the alleged offence, they were of unsound mind. In other words, their mental illness was symptomatic or impacting upon them to such an extent at the time, that they had lost their mind or mental capacity and as a result, committed the offence. For example, it might be the case that the person charged with a murder, at the time of committing it, had the perverse view that the person they killed was satan, or possessed by the devil. So, this person isn’t as culpable as someone who knew exactly what they were doing.

Now what follows, is that this person, through his or her legal representative has to support the view with psychiatric evidence, which of course is usually contested by the prosecution. The threshold in such matters is very high, as it should be. Now if the court finds in favour of the accused, then in most states, the primary focus is on getting the person well and protecting the community. So, the person is usually diverted to a high security mental health facility where they undergo treatment. That treatment is applied under a legislative order.

During the course of this treatment, the person may respond well to treatment and as a result, the order may be relaxed, or may have some of its conditions eased up. It might be the case that the person has supervised leave on the grounds of the hospital which might look something like, being shadowed around the grounds of the hospital, then over a period unsupervised leave. But bear in mind, this might take numerous years to occur. And of course, there are always exceptions.

Now., I can tell you that every criminal is not lining up for a psychiatric defence, and many people who were not well mentally at the time of the crime, don’t necessarily want to run the defence. Why? Because if you’re sentenced within the criminal justice system, you know exactly when you’re getting out. If you’re in the mental health system, there is no release date, it is completely dependent upon how you’re responding to treatment and the like.