Otros desarrollos productivos

5.51 Apart from the removal of executive discretion, there are a number of related release issues which must be considered, namely: the Attorney General’s veto; the requirement to notify the Minister for Police and Emergency Services; and the issue of conditions of release. These issues, discussed in this and the next recommendation, are presently governed by s 84 of the MH Act:

Release of persons after review

84. (1) If, within 30 days after the date of being notified under section 83 of a recommendation for the release of a person, the Attorney General has indicated an objection to the person’s release on the ground that:

(a) the person has served insufficient time in custody or under detention; or (b) the Attorney General or the Director of Public Prosecutions intends to proceed

with criminal charges against the person,

the prescribed authority may not order the person’s release.

(2) If, within 30 days after the date of any such notification, the Attorney General has not indicated any such objection to the person’s release, the prescribed authority may, subject to the regulations, make an order (either unconditionally or subject to

conditions) for the person’s release.

(3) Before ordering the person’s release, the prescribed authority must inform the Minister for Police and Emergency Services of the date of the person’s release. (4) If a recommendation is made under section 81 for a person’s release, the prescribed authority may, subject to the regulations, make an order (either unconditionally or subject to conditions) for the person’s release.

5.52 The Attorney General’s veto. Pursuant to s 84(1), the Attorney General has the power to veto the release of a forensic patient if “the person has served insufficient time in custody or under detention” or “the Attorney General or the Director of Public Prosecutions intends to proceed with criminal charges against the person”. According to Hayes and Craddock this veto is inappropriate as:

[t]here are serious ethical inconsistencies within the Attorney’s power to object, which is effectively a power to imprison. If the system of detention of forensic patients is truly for the protection of the person and of society, there can be no basis for the power to withhold release merely because the Attorney holds the view that the person “has served insufficient time in custody”.118

Another commentator argued, in relation to the earlier version of the legislation:

... how can one justify the power as to release/non release vesting in the Attorney General when it is effectively in his name that the prosecution has originally been brought. The idea of the prosecutor also being the arbiter of the length of “sentence” is a novel concept with far reaching ramifications.119

5.53 There are five categories of “forensic patient” to which this veto could apply:

Those found unfit to be tried by a court and ordered to be detained, but who have not yet been the subject of a special hearing (see para 5.10 above);

Those found unfit to be tried by a court and who, after a special hearing, have had a limiting term of detention imposed (see paras 5.14-5.16 above);

Those detained in hospital pending their committal for trial or trial for an offence;

Those detained after being found not guilty on the ground of mental illness (see Chapter 6); and

“Mainstream” prisoners who have been transferred to a hospital from prison while serving a sentence of imprisonment or life imprisonment (“transferees”).

5.54 The Monitoring Committee considered both bases upon which the Attorney General may veto release recommendations and argued as follows:

Sufficiency of time served in custody basis for veto. For categories 1 and 3, such a discretion is inappropriate as legal charges are still pending. For category 2, release before the end of the limiting term is clearly contemplated by the current legislation (on the recommendation of the Tribunal on the ground that the person is not dangerous). In any event there has been no finding of full criminal responsibility against the person and therefore the concept of a sufficient term in custody is inappropriate. Similarly for category 4, as dangerousness is the basis for detention of persons found not guilty on the ground of mental illness, persons who the Tribunal no longer consider dangerous are entitled to their liberty: “[t]o effectively impose a sentence of an unspecified additional period after the stated release criteria has been met makes a mockery of both the verdict and the review system”. The Monitoring Committee did, however, accept the appropriateness of the application of the discretion to transferees. Such forensic patients have been convicted by a court and then observed in gaol to be mentally ill and transferred to hospital, and “[w]here a court has imposed a sentence [not a limiting term], it is proper that a consideration be made as to whether a sufficient proportion has been served prior to release”.120

The Monitoring Committee therefore recommended the removal of the “sufficiency of time in custody” veto except for forensic patients who have been transferred to a psychiatric hospital from prison. Such “transferee” forensic patients fall outside the Commission’s reference and therefore the Commission does not suggest any change to the existing law for such people. However, the Commission supports the removal of the veto for other forensic patients. Accordingly, it recommends that s 84(1)(a) of the MH Act be limited to apply only to forensic patients who have been transferred to hospital while serving a sentence of imprisonment or life sentence. The Mental Health Review Tribunal supported this recommendation.121 The Mental Health Advocacy Service suggested that on one interpretation of the legislation, s 84(1)(a) would already be so limited, but supported the recommendation in the interests of clarity, agreeing that the veto was inappropriate in most cases.122 This recommendation was also accepted in the 1996 New South Wales Health Department Discussion Paper.123

Pending charges basis for veto. The 30 day period allowed for a response by the Attorney General or DPP delays the release of all forensic patients, including those not facing charges and otherwise entitled to release. The Monitoring Committee recommended that the “pending charges” discretion

be limited in its operation to forensic patients who have been found unfit to be tried or are in hospital awaiting either committal for trial or trial (categories 1 and 3 above). It commented:

The operation of this section is reasonable with respect to persons who have been found unfit to be tried, or persons who are detained in hospital pending committal for trial or trial itself ... The 30 day period for an administrative procedure is not reasonable for forensic patients who have had the matter for which they became a forensic patient finalized. In these cases, the patient will either be granted bail or be in custody for any other outstanding offences, and the law should follow its usual course.124

The 1996 New South Wales Health Department Discussion Paper followed the Monitoring Committee recommendation, arguing:

The main additional concern here is the discriminatory aspect of the current provision. Offenders who are not mentally ill, remain in prison until such time as their sentence is served or parole is granted. There is no provision allowing the Director of Public

Prosecutions to authorise detention for an additional period, simply in order to be able to lay charges on an unrelated matter. Individuals who become forensic patients should at least have access to the same rights accorded members of the prison population who do not suffer from a mental illness. It is understood however, that the Director of Public Prosecutions supports retaining the current provision.125

However, the Commission believes this argument about the discriminatory aspect of the current provision is equally applicable to all forensic patients, including those in categories 1 and 3 above, though it makes no finding in relation to “transferees” who are outside the terms of its reference. Therefore the Commission does not accept the Monitoring Committee’s

recommendation in relation to the pending charges discretion. It believes that it is a matter for the DPP to proceed with any other charges in the usual way and that forensic patients should not be held longer in custody for this reason. Where charges are pending, continued detention in the mental health system amounts to an inappropriate form of remand, especially where the alleged offence is one for which the person would readily be granted bail. Thus the Commission also recommends that s 84(1)(b) of the MH Act be limited to apply only to forensic patients who have been transferred to hospital while serving a sentence of imprisonment or a life sentence. 5.55 The Commission therefore believes that the Attorney General’s veto on recommendations for release on both the “sufficiency of time served in custody” and the “pending charges” bases should be abolished except for “transferee” forensic patients. The Commission recommends that s 84(1) of the Mental Health Act 1990 (NSW) should be limited to apply only to forensic patients who have been transferred to hospital while serving a sentence of imprisonment or life sentence.

5.56 Notification requirement. The Monitoring Committee also recommended the deletion of s 84(3) of the MH Act, which requires the prescribed authority to notify the Minister for Police and Emergency Services of the date of a forensic patient’s release as it inappropriately “implies that the police will then have some role in monitoring that person in the community”.126 The Commission also recommends the abolition of the s 84(3) requirement. The requirement is not only discriminatory and a breach of human rights, but it appears to be unnecessary, as the person (to be released) must have been found by the Tribunal to be neither dangerous to themselves nor the public. Usually they will be conditionally released and therefore under the care of mental health staff. If it is considered appropriate to notify certain victims of the release of such a person (as currently provided for in the Police Commissioner’s Instructions127) this should be governed by the procedures which apply to all victims, not just victims of forensic patients.128 The 1996 New South Wales Health Department Discussion Paper also supported the deletion of s 84(3) for similar reasons.129 Accordingly, the Commission also recommends that the similar requirement found in sections 18 and 29(3) of the MHCP Act be removed.