Forensic community treatment orders: Waste of time or exciting new provision?

Introduction

In 2009, the Mental Health Legislation Amendment (Forensic Provisions) Act 2008 came into force, resulting in the renaming of the Mental Health (Criminal Procedure) Act 1990 which included a number of important changes. One of the key additions was the provision of forensic community treatment orders (FCTOs), enabling compulsory treatment in correctional centres. Despite the apparent support of the Mental Health Review Tribunal, only a handful of applications for FCTOs have been made to date (Howard, 2014).

The high prevalence of psychiatric morbidity in prison populations has been recognised across the world (Fazel and Danesh, 2002), for some time now. In New South Wales (NSW), Nielssen and Misrachi (2005) found that approximately 7% of those received into correctional settings had a psychotic illness, a figure similar to other international studies, but despite these elevated levels of psychopathology, only 16 applications for FCTOs were made in 2014 (Howard, 2014). The mentally ill in prison include some of the more difficult to treat patients, often with co-morbid substance misuse and personality disorders. This paper explores the apparent under use of this new provision, some of the arguments to support the use of FCTOs and some of the barriers.

Discussion

Do community treatment orders work?

Community treatment orders (CTOs) have been in use in most of North America since the 1980s, in Australia and New Zealand since the 1990s and they have more recently been introduced in a number of European jurisdictions, including England and Wales. Rugkasa et al. (2014) recently collated the literature into the effectiveness of the CTO provision and highlighted the lack of robust evidence to support their widespread use.

Kisely et al. (2011) identified two randomised clinical trials carried out in the United States looking at individuals subject to court-ordered ‘Outpatient Commitment’ and found that 85 orders would need to be made to prevent one hospital admission, 238 orders would need to be made to prevent one arrest, 27 orders would need to be made to prevent one episode of homelessness and 6 orders would need to be made to reduce victimisation from either non-violent or violent crime.

Both papers suggest the standardisation of outcome measures and methodologies in this area and the promotion of further research, with a focus on a wide range of outcome measures, highlighting the concerns held by many about the standard of the evidence to date on the use of CTOs. It could be the case that there are too many CTOs being applied for in the community, rather than there being too few applied for in a custodial setting.

Obstacles to the use of FCTOs

Mental health professionals working in a custodial setting have anectodally raised a number of concerns about the FCTO provision that act as barriers to its use: the extra work involved in applying for a FCTO, the view that it is not easily converted to a CTO on release from custody and the perception that the order has no teeth, that is, if a patient were to refuse treatment, they would need to be scheduled to Long Bay Hospital for medication to be enforced.

Arguments to support the use of FCTOs

Prisoners’ right to health care

The principle of equivalence of care, is that prisoners are entitled to the same level of health care they would be afforded were they not in custody, has been established for some time. In recent years, the importance of the rights of all individuals with disabilities, including persons with mental illness, has been strengthened and highlighted by the Convention on the Rights of Persons with Disabilities, which was ratified by Australia in 2008. Article 25 emphasises every individuals’ right to health care regardless of their disability; prisoners are covered by the Convention. If a person fulfils the criteria for treatment with a CTO, either in the general population or in the correctional community, should they not be treated with a CTO in both settings?

Prisoners’ rehabilitation needs

The NSW State Parole Authority considers the release of prisoners and can recommend that individuals complete a variety of rehabilitation courses prior to their release. A number of these programmes run over many weeks, and mentally disordered offenders need their mental illness to be well treated in order to be able to engage and complete the necessary courses. It is possible that an individual in custody, suffering from a mental illness and with a history of poor treatment adherence, would be unable to graduate from the programmes recommended by the Parole Authority and could face a longer period of incarceration as a result.

The current legislative framework could increase compliance with the treatment necessary to maintain a stable mental state, preventing re-admission to the prison hospital and enhancing continuity of care in rural correctional centres. Its use could ensure that mentally disordered offenders fulfil the requirements stipulated by the Parole Authority to be eligible for release on parole, rather than completing their entire sentence in custody.

Prisoners’ right to effective safeguards

The fundamental right of individuals to have access to effective safeguards is detailed in the Convention on the Rights of Persons with Disabilities. Article 12 (4) underlines the person’s right to review of their circumstances by ‘a competent, independent and impartial authority or judicial body’. In addition to any right of appeal a prisoner may have against their detention in a custodial setting, mentally disordered offenders are entitled to regular review of their treatment for their mental illness by the Mental Health Review Tribunal, but only those subject to a FCTO are afforded this protection. When considering this vulnerable population, who has already been deprived of their liberty, should we not be using the available legislative frameworks to enhance their access to appropriate safeguards?

Conclusion

The equivalence of care for prisoners is recognised internationally as a fundamental goal but difficult to achieve, not least due to the complex health problems of those detained. It could be argued that the addition of the FCTO provides equivalent safeguards and treatment to often the most challenging mentally disordered offenders, but to date, mental health professionals in NSW have not embraced its use.

There are practical barriers that have been identified, and internationally, it is accepted that there is a lack of robust evidence to support the widespread use of CTOs. Further research needs to be carried out to explore these barriers and to investigate outcomes, and consideration should be given to lobbying for changes to legislation to minimise the obstacles if benefits are established.

In this disadvantaged population, we should strive to enhance the protections they are afforded, the treatment they receive, and provide them with the best opportunity to engage in the rehabilitation programmes offered in custody, not only so they are more likely to be released on parole but so they are able to address their offending behaviour and are less likely to return to custody.