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.

Since the enactment of UK Human Rights Act in 1998, decisions have been made that have relevance for forensic patients in NSW. For example, an eight-week time frame to process a patient’s application for review was found to be not fast enough to constitute a “speedy review” as guaranteed by the European Convention on Human Rights. In NSW, although patients are guaranteed a similar “speedy review” under the ICCPR, it sometimes takes a year or more for a minister to review a forensic patient’s case - a Charter of Rights could change this.

Executive discretion was abolished in the UK after the 1980 European Court of Human Rights decision, X v United Kingdom, held that the UK tribunal could not merely act as an advisory body to a minister, but must also have the power to discharge patients. The UK Human Rights Act ensures that the principles of the European Convention are part of UK law. Likewise, a charter would raise the status of human rights principles in NSW law.

Another important benefit of a charter, as legal academic George Williams argues, would be is its role in encouraging the community to “start a new conversation” about human rights. To be effective, a charter would need to reflect community values, and be developed through a process that encourages discussion about what rights are important and how they should be protected. Mental health consumers would become aware of their rights and more empowered in ensuring the government protects them.

The NSW Charter Group, a coalition of individuals and organisations in support of a NSW Charter of Rights, presents a way forward.

The group is seeking widespread community consultation on how best to protect and promote human rights, including whether or not NSW should adopt a charter, and if so, what it should include and how it should work. Following the community consultation, the group will call on government to adopt human rights protection consistent with community views.

To be part of this conversation, you can:

• join the NSW Charter Group and learn more; and
• contact your local member and other NSW Members of Parliament in support of a NSW Charter of Rights.

Having this conversation can educate, shape community attitudes and bring hope and “a voice” to people who are otherwise silenced by the political system.