Abstract
The relationship between mental disorder [1] and criminal offending is complex and has long been the subject of discussion [2]. Evidence from research over the past decade suggests that there are increased rates of offending in sufferers of schizophrenia and major affective illness [1], 3–5, and that, especially in the perpetrators of the most serious of crimes such as homicide, there are elevated rates of psychiatric illness 6–9. Moreover, various studies have also shown that mentally disordered offenders are overrepresented among homicide recidivists: those who go on to kill again [10, 11].
The development of safe and ethical services for mentally disordered offenders, particularly for those who have committed a homicide offence, therefore poses an important public health challenge. In recognition of the contribution of mental illness to the commission of a serious crime, the law has long recognized that mentally disordered offenders may lack criminal responsibility for their violent actions, and hence require a therapeutic, rather than criminal, disposition [12]. In addition, mental illness may render a defendant permanently unfit to stand trial for an alleged offence. When the facts of the actions constituting an alleged offence are accepted by a Court, the findings of unfitness to stand trial or a lack of criminal responsibility (previously known as ‘insanity’, and now as ‘mental impairment’ in most jurisdictions in Australia) will generally result in a period of secure hospital care (at least in those jurisdictions where such facilities exist) when the offence itself has been grave [13].
Such hospital detention is rarely permanent, and so decisions regarding the readiness of such mentally disordered offenders for discharge back into the community must eventually be taken. Such decisions raise a plethora of issues: clinical, ethical and political [14], including concerns regarding the safety and efficacy of subsequent community treatment.
In the last two decades, several advances have occurred within the Australian State of Victoria in regard to the management of such patients. Specialist forensic rehabilitation inpatient services were established in Victoria in the early 1990s, allowing all such patients to be moved from prison to hospitals. Prior to that, notwithstanding their lack of a criminal conviction, they were held in prison custody, unless acutely mentally unwell.
Prior to 1998, processes regarding decisions around leave and discharge for such patients was somewhat opaque, with ultimate responsibility being placed upon the executive of the day. They were detained under ‘Governor's Pleasure’ orders: in effect, until both clinicians and elected politicians were satisfied that release was appropriate. Given the nature of this process, it is perhaps not surprising that there was a prevailing conservatism regarding decisions to allow release from hospital [15].
With the introduction of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)[16], there was a major change in the decision-making processes regarding the release of patients who had been found not guilty on grounds of mental impairment, or permanently unfit to stand trial. The Act, described as an ‘important experiment’ [15], shifted responsibility for alterations to the status of such detainees from the executive onto the sentencing court. The ‘Governor's Pleasure’ status was abolished, to be replaced by the status of ‘Forensic Patient’ who was under ‘supervision’. Those under custodial supervision were to be managed in secure forensic hospital facilities.
Also in 1998, a statutory body, the Victorian Institute of Forensic Mental Health (VIFMH or Forensicare), consisting of inpatient and community services, was established, with the aim of providing effective integration of assessment, treatment and rehabilitation of mentally disordered offenders [17]. Forensicare is the sole provider of secure forensic hospital facilities in Victoria, and so have played a central role in the day-to-day administration of the Crimes (Mental Impairment and Unfitness to be Tried) Act.
This paper describes the characteristics and the post-release outcomes of all patients with an index offence of homicide who were under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (and/or its forerunner legislation) and who were released from forensic inpatient psychiatric care in Victoria since the development of specialist forensic services in 1991.
Method
A legal database was consulted to identify subjects meeting the following inclusion criteria: (i) hospitalized in secure forensic psychiatric care due to a finding of mental impairment/insanity or unfitness to stand trial for a homicide offence in Victoria; (ii) released from such care to reside full time (7 nights a week) in the community (defined as being a location outside of hospital boundaries and without 24 h professional mental health staff supervision); and (iii) initially released between 1 January 1991 and 30 April 2002.
Using Victorian Institute of Forensic Mental Health clinical records, relevant information was obtained regarding demographics, index offence, progress in hospital, diagnosis, psychosocial and criminological data.
The outcomes (offending or readmission into secure care) over the 3 years following release were also obtained from the clinical records.
Ethics approval for the study was obtained from the Victorian Department of Human Services (DHS) Human Research Ethics Committee.
Results
Twenty-five patients met all of the inclusion criteria. Of note, an additional four were identified who had been found not guilty on grounds of insanity of homicide, but were subsequently treated as inpatients in general (rather than forensic) inpatient services. Their post-release follow up was also delivered by general mental health services and so their full file records were unavailable to the research team. All four of these cases, however, have subsequently been fully released from their Supervision Orders following Supreme Court hearings and in none of the cases was any evidence presented suggesting that they had offended subsequent to release.
Sociodemographic details
Of the 25 subjects, 19 (76%) were male. Six (24%) had English as a second language. Educational attainment was unknown for six subjects, and was Year 9 or above in 17 (68%), including tertiary level study in eight (32%).
At the time of release one subject (4%) was married, four (16%) were divorced or separated, eight (32%) were widowed and 12 (48%) had never married. Ten (40%) of the subjects had at least one child.
Clinical details
Primary psychiatric diagnoses made clinically at time of initial admission to forensic hospital care after the index offence were: schizophrenia, n = 16 (64%), other psychotic disorder, n = 5 (20%); depression, n = 3 (12%); and personality disorder, n = 1 (4%).
Four subjects (16%) were formally diagnosed with an additional secondary diagnosis of personality disorder.
Ten (40%) had a past history of alcohol abuse recorded at admission. Ten (40%) had a past history of other substance abuse recorded.
Eleven subjects (44%) had been previously admitted to a psychiatric hospital; five (20%) had more than one such prior admission. None had previously received treatment in a forensic hospital.
Five subjects (20%) had a family history of mental illness in a sibling or parent recorded at admission.
Criminological history
Only four subjects (16%) had a history of prior criminal convictions, and in only two cases (8%) were these for violent offences. None had a prior history of homicide offences.
Mean age at the time of the index homicide was 32 years 5 months (11 853 days), range = 22 years 1 month (8059 days)–48 years 8 months (17 772 days), SD = 7 years 3 months (2653 days).
Victims of homicide
The relationship of the victims of the index homicide to the subjects was as follows: romantic partner, n = 8; child(ren), n = 3; other relative, n = 5; acquaintance, n = 6; stranger, n = 2; ex-partner, n = 1.
Progress in custodial care
The inpatient hospital files recorded episodes of inpatient violence in only four (16%) of the subjects at any stage throughout their hospital admission.
The overall mean time spent in custody (calculated as the difference between date of offence and date of release) was 11 years 2 months, range = 3 years 8 months–23 years 8 months. Because the initial period of custody for many was spent in prison (mostly within those who offended prior to the construction of specialist forensic inpatient rehabilitation facilities in 1991), the overall mean time spent in hospital was less than this: 7 years 10 months, range = 1 year 10 months–19 years 4 months.
For the subgroup whose index offence was committed prior to 1991 (n = 16), specialist forensic inpatient rehabilitation services were initially unavailable and the mean time in custody was 14 years exactly. For those whose offence was in 1991 or later (n = 9), the mean time in custody was 6 years 3 months. Post-hoc analysis showed this difference to be significant (p < 0.001; t = 5.1, df = 21.4, equal variances not assumed). The length of stay in custody for those patients who eventually managed to obtain release was thus significantly lower following the introduction of specialist forensic rehabilitation early in 1991.
Outcomes after release
The mean age at first discharge from hospital was 43 years 8 months (range = 30 years exactly–63 years 8 months, SD = 8 years 4 months).
All 25 patients continued to be monitored by the forensic mental health service (i.e. VIFMH and the forerunner equivalent service) after their release. Although police records were not examined, it can reasonably be assumed that any offending behaviour that resulted in the involvement of the courts would have been made known to the forensic mental health service and hence documented in the forensic mental health files. In addition, after the introduction of the Crimes (Mental Impairment and Unfitness to be Tried) Act in 1998, all cases were reviewed by the Supreme Court at least once, and usually on an annual basis. These reviews included submissions from the Office of the Attorney General, whose remit is to ensure adequate protection of the public. It can be reasonably assumed that the Attorney General would ensure that any episodes of reoffending were brought to the attention of the Court. The follow up was complete, with no patient deaths during the period of study.
In the 3 year follow up, recidivism was rare, with only a single episode of criminal recidivism. This was a minor assault perpetrated by a patient with a primary diagnosis of personality disorder and no mental illness. The matter was dealt with in the Magistrates’ Court and did not result in readmission to hospital. This represents a recidivism rate of 1 in 25 (4%) over the 3 years.
There was, however, a substantial number of readmissions to secure hospital care, with 12 (48%) being readmitted at some point in the 3 years after release. Of these, six (24%) had one or more brief (<6 months) readmissions to hospital, and six (24%) had more lengthy readmissions (>6 months), with subsequent cancellation of their community tenure. For the group who were readmitted, the first such episode occurred at a mean of 387 days after initial release; the range was wide, however: between 34 and 980 days.
Discussion
The current study followed the progress of a group of mentally disordered homicide offenders who were granted release into the community between 1991 and 2002. It provides a useful picture of the progress of forensic patients with an index offence of homicide within the Victorian jurisdiction. The advantages of reviewing this population is in the wealth of information contained in the medical record, from original witness statements, psychiatric reports, and hospital progress notes. Given the mean length of stay, each patient has had an exhaustive clinical assessment, and clinical data are likely to be accurate.
There was a very low rate of criminal offending after discharge but readmissions to hospital were common, and half of these resulted in cancellation of community release. It is also notable that lengths of stay in custodial care were long but substantially reduced after the introduction of specialized forensic rehabilitation facilities.
This study has a number of limitations. The small number of subjects limits the generalizability of the findings. Although there is a possibility of underestimating post-release offending due to the use of limited data sources (in this case the patient's clinical file and transcripts of court reviews), given the close monitoring these patients received in the community, it is unlikely that criminal offending was not detected in the study population. It is of course possible that they may have committed violent acts that did not come to the attention of police, although the clinical files did not suggest that any of them engaged in such behaviour.
It should be borne in mind that these subjects – homicide offenders who were granted release back into the community – represent a highly selected group that is unlikely to be representative of mentally disordered offenders in general. They are likely to be a subset who have a mental disorder that has responded to treatment and who have displayed an ability to cooperate with services to an extent that allows adequate supervision outside of hospital. The very favourable offending outcome data therefore may not readily apply to those with more complex clinical profiles.
Although it is difficult to compare studies from different jurisdictions, this is consistent with other studies that have shown a substantial reduction in recidivism when there are well-designed and implemented specialist forensic community treatment programmes 18–21. While the reported rate of post-release offending is particularly low in the present study compared to others [22], rates of readmission to hospital and cancellation of release are comparably similar 23–27. Such readmissions should not be viewed as a failure, but rather should be seen as an essential part of appropriate treatment to prevent recidivism, protecting both patient and the public. The data are consistent with earlier research suggesting a reciprocal relationship between safe community care and a low threshold for readmission to hospital, suggesting that the ease with which forensic patients can be readmitted should be seen as therapeutic, possibly averting potential criminal behaviour. It is important to bear in mind that the threshold for readmission to hospital for this group does not depend on their meeting civil commitment criteria; rather, the relevant legislation allows for their compulsory apprehension back into custodial care if they are believed to pose a significant risk of endangerment to themselves or others, irrespective of their mental state.
The group of patients who suffer from a mental illness and then go on to commit a homicide, carry with them a public stigma that cannot but have a bearing on release decisions and hence on their length of stay in custodial care. The rhetoric behind the changes seen in Victoria recognized that those adjudged not guilty by reason of mental impairment (or found unfit to stand trial) had not in fact been convicted of a crime, and sought to remove such decisions from the public domain into the courts. The underlying spirit of the new legislation in Victoria was that forensic patients should be detained for as short a time as possible, consistent with their safety and that of the community. Prior to the present study, however, there have been no data published on their outcomes after release into the community.
The findings on length of stay are consistent with other studies showing that those found not guilty of a serious crime due to mental impairment are generally detained for very long periods of time [23, 24, 28]. The lengths of time were far in excess of the periods required to bring the patients’ acute mental state disturbances (which directly led to the offending) under control. The average length of stay in the present study of >11 years, contrasts markedly with the average length of stay in general psychiatric inpatient units in Victoria during the same time period, which stood at only 17.7 days in 1994–1995 [29] after the introduction of integrated community services. More comparable figures for time in custody are found among those actually convicted of murder in Victoria: for these offenders, the most common sentence length is 25 years, with a 15 year non-parole period [30], although many receive lighter sentences than this, especially if mitigating factors such as mental illness are relevant. These figures appear to support the notion that decision-making regarding release for such patients remains conservative, characterized by a cautious, risk-averse approach that results in prolonged periods of secure hospitalization. This results in lengths of stay in secure care that are broadly comparable in length to the time spent in custody by homicide offenders who are not acquitted for mental health reasons.
Furthermore, the present study considers only those patients who have actually managed to obtain release into the community; obviously the average length of hospitalization would be longer if the total population of forensic patients with an index offence of homicide, including those not released, were accounted for.
It has been suggested that length of stay may be prolonged due to a multiplicity of factors [23, 28]. These issues range from progress in hospital to sensitivity to public opinion. Perhaps understandably, there appears to be an emphasis attached to the severity of the index offence, and a tariff is placed on the offender in question. While the notion of ‘early release’ may be controversial, the underlying philosophy of the relevant legislation is that hospitalization should be until such time as the individual undergoes remission from the symptomatology that led to the criminal act and has been sufficiently rehabilitated as to no longer pose a significant danger to self or others.
There is likely to be a continued conservative approach in release decisions, and in expert evidence assisting such decisions, given the grave implications for possible future victims, and for psychiatric services and patients, in the event of a false-negative decision. Some confidence can be garnered, however, from this and other studies that show a low likelihood of post-release offending when there is appropriately intensive community care and monitoring. There has been increasing evidence from several jurisdictions that well-implemented conditional release systems, with the capacity to readmit at the first sign of increased risk, are indeed effective at reducing the risk of recidivism, thereby protecting the public. Such systems must strike a careful balance between individual rights and public safety. Most critical are processes of monitoring to ensure that necessary treatment is delivered, the patient demonstrates responsible behaviour, and prompt action is taken where risk is escalating 18–20. In particular, a low threshold for returning patients to secure hospital care has been shown to minimize the risk of re-offending 18–20. The current service provided by Victorian forensic psychiatric services appears to fulfil these criteria.
Further research should be directed at refining the timing of release decisions, based on how soon identified risk factors have been convincingly and demonstrably reduced to acceptable levels. The increasingly sophisticated approaches to risk assessment that have been developed over the past decade or so [31] may assist in this process by providing decision makers with objective evidence-based data regarding readiness for transition into the community. Such evidence-based assessment techniques should help both with identifying an appropriate pace of incremental freedom for each individual patient, and in ensuring that subsequent community treatment and supervision is appropriately tailored to manage their risks.