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THE ADVOCACY AND SUPPORT CENTRE INC
SMARTER STATE SCHOLARSHIP

Report prepared by

Smarter State Scholars for 2009: Mr Andrew Caple and Ms Sue Gordon

11 October 2009

I ACKNOWLEDGMENTS

In 2009, we were pleased to receive The Advocacy and Support Centre's inaugural Smarter State Scholarship. This funding enabled us to pursue an overseas field trip in two countries - Scotland and the United States of America. Specifically, it enabled us to attend and to deliver our conference paper in Edinburgh and New York City, and to undertake a supplementary field trip to the Centre for Court Innovation also in New York City. We would like to thank TASC's Management Committee for providing us with this exciting opportunity. We must also extend special thanks to Mr Dan Toombs, TASC's Chief Executive Officer, who supported our application and sincerely believed in our claims that the proposed study program would further develop our agenda for law reform; an agenda that continues to assert the importance of enhancing access to justice for mentally impaired persons. We are of course honoured and proud to promote "The Advocacy and Support Centre", and the "Queensland Criminal Justice Centre" through our ongoing professional contributions in the pursuit of enhancing access to justice - not only for mentally impaired persons, but for marginalised persons generally.

II SCHEDULE

Date Organisation/Host
25-26 June 2009, paper delivered on 25 June 9th Annual Conference of the International Association of Forensic Mental Health Services: "Facing the Future: Forensic Mental Health Services in Change", Edinburgh International Conference Centre, Scotland.
28 June - 4 July 2009, paper delivered on 2 July 31st International Congress of the International Academy of Law and Mental Health, New York University Law School.
6 July 2009 Red Hook Community Justice Centre, 88 Visitation Place
Brooklyn, New York City - Demonstration Project.
7 July 2009 Brooklyn Mental Health Court, 360 Adams Street, Brooklyn, New York City - Demonstration Project.
7 July 2009 Centre for Court Innovation, 520 Eighth Avenue, 18th Floor New York City - Interview with Julius Lang, Director, Technical Assistance.
8 July 2009 Centre for Court Innovation. Interview with Director of Implementation Ms Raye Barbieri re Staten Island Youth Court
9 July 2009 Midtown Community Court Manhattan ¾ West 54th Street New York City -Demonstration Project

III INTRODUCTION

Our field trip has enabled us to identify a number of themes and trends emerging in the development of mental health law. Our report focuses on covering a selection of those themes that are most relevant to the work of TASC. It concludes by reflecting on how TASC may engage practically with those trends. It should be no surprise that our study program highlights the sustained rise of the interdisciplinary approach to legal scholarship that is "therapeutic jurisprudence". Its rise is also commensurate with the now wide spread implementation of problem solving courts; courts that have in many ways implemented therapeutic jurisprudential tenets in practice. While the substantive and procedural minutiae of each problem solving court remains unique to each jurisdiction, we can clearly observe that the use of this approach is becoming more pervasive. TASC continues to support this approach both theoretically and pragmatically in the specific context of mental health law. TASC does in fact appear to be at the forefront of non-profit organisations in its advocacy of a greater practical function for therapeutic jurisprudence and problem solving courts in Queensland. The reasons, as we shall see are clearer than ever. The Centre for Court Innovation teaches us that problem solving forums such as the Red Hook Community Court and the Mental Health Court in New York, contributes substantially to the economic and social betterment of low socio-economic communities. Their basic model, we believe, makes a persuasive argument for restructuring the way we approach similar problems in Queensland. The encouraging outcomes of TASC's Disability Law Project in Toowoomba and our fledging influence in the city of Ipswich has now demonstrated the very real steps we have taken toward a more therapeutic method of problem solving, which benefits not just those with whom we engage as clients, but also their families, friends and the community.
Our report, however, is more than an observation of the rise of therapeutic jurisprudence and problem solving courts. We note, for example, that there appears to be a wide spread acknowledgment for the need to provide educative resources for those professionals who work within forensic mental health settings. We report that there are now a number of professional development courses existing within international jurisdictions. This is pleasing given that TASC is continuing to demonstrate leadership in this area by contributing to the delivery of two tertiary level courses in mental health law. The first commences at the Queensland University of Technology in September 2009, the second at Griffith University in February 2010. We also note the emerging right to mental health as a human right and ethical issues relating to forensic psychiatry. It is to these issues that we turn our attention first.
IV FORENSIC PSYCHIATRY

A Professional Ethics in Forensic Psychiatry

One of the most significant differences in relation to the doctor/client relationship in the context of psychiatry is said to be the relative incapacity of psychiatric patients to make rational decisions in their best interests. Psychiatric patients are especially vulnerable not only because their capacity to understand the nature and effect of their decisions is at times questionable, but moreover because they are often the subject of involuntary treatment orders and are therefore dependent upon the good will of others to make decisions on their behalf. Of course, the issue of consent in this context is fundamental and an ongoing issue in mental health law. There is, arguably, a need for appropriately regulated paternalism for some mentally ill persons who clearly need care but are unable or unwilling to ask for it. Thus, under Australian law, as is the case in most common law jurisdictions, a mentally ill person's competent refusal to treatment may be overridden in certain circumstances. Psychiatrists are thus unique amongst the medical profession because they are legally authorised to assault their patients. With this power, of course, is the inherent risk that harm may result from treating persons unjustly. Psychiatrists have extraordinary powers. In accepting those powers psychiatrists are ethically bound to exercise them responsibly. Codes of ethics, while not legally binding, are tools that facilitate this aim.
A separate code for ethics, acknowledging the distinctive function of psychiatrists vis a vis the general medical profession exists in many jurisdictions. The Australian code was first published by the Royal Australian and New Zealand College of Psychiatry in 1992. The preamble to the current revision, however, states that "there are many issues specific to psychiatric sub-specialties, such as Forensic Psychiatry and Child Psychiatry, which this Code does not fully cover...". It is perhaps curious then that the explicit recognition of the distinctive function performed by forensic psychiatrists has not yet led to the dissemination of a distinctive code.
1. The forensic psychiatrist/patient relationship does not accord neatly with the usual relationship of trust found in the doctor/patient relationship. Accordingly, the nature of the forensic psychiatrist's obligations to their client appears, at first glance, less onerous than that required by a psychiatrist. When we voluntarily engage medical professionals in a contract like relationship we trust them to comply with the well established principles of autonomy, beneficence, non-maleficence and justice. We trust them to protect our interests when we are not well enough to act for ourselves. However, conflicts between those basic principles are common in forensic psychiatry. This arises often when a court calls upon the forensic psychiatrist to provide an independent clinical assessment. That contract like relationship does not exist in this context. The forensic psychiatrist must, at times, feel conflicted by the inherent tension between their sense of duty to the patient and their duty to facilitate justice. There are those who argue that the principle of justice should be paramount in forensic psychiatry, and that there is a need for a more specific code of ethics to cover this specialised area of clinical practice. This code they argue should articulate that in cases of conflict between these principles the duty to justice should invariably trump the forensic psychiatrist's duty to their patient.
2. The limits of paternalism and the nature of doctor/client relationships are ongoing issues that raise ethical dilemmas for psychiatrists generally. But what can we say about forensic psychiatry? Is the profession a special case? The International Association of Forensic Mental Health Service's annual conference in Edinburgh generated some spirited debate in relation to the limited nature of codes of ethics attached to the psychiatric profession. At a time when forensic psychiatry is seen increasingly as a guardian of public safety, is it time to implement a separate code of ethics for this component of the psychiatric profession? According to a consensus of forensic professionals at Edinburgh, the answer is yes.
3.
B Taking a client history - is it really history?

Also at Edinburgh, Simon Wessley, Professor of Psychology at Kings College, Cambridge, applied an innovative approach in his presentation entitled: "Telling Lies About Hitler"; The David Irving Libel Trial, what do we mean by "Taking a History"? Wessley muses that "[e]very time we see a new patient we say ‘I took the history'. But do we really? What is ‘a history'? The professionals at history are historians - how do they do it?" Wessley utilised the David Irving libel trial heard in 2000 to illuminate what is good and what is bad history. Wessley skilfully used the tale of the infamous "holocaust denier" to demonstrate the desirability of interpreting clinical reports with an objective skepticism.
Irving had sued Deborah Lipstadt, claiming she had defamed him in her little known book "Denying the Holocaust". However the English Court found in favour of Lipstadt accepting as true her claims that Irving was a racist and a holocaust denier. Her claims were therefore justified on the basis that they were true and she could not therefore be held accountable for libel. The expert evidence tendered by Richard Evans had exposed Irving for having made more than one hundred factual errors in his writings; errors that inordinately tendered to make favourable estimations of Nazi party policy and had in effect distorted the historical record, asserting that "...no objective, fair-minded historian would have serious cause to doubt that there were gas chambers at Auschwitz and that they were operated on a substantial scale to kill hundreds of thousands of Jews".
Wessley's presentation of the trial was all the more poignant given the systematic murder of mentally ill Germans from 1939-1941, and moreover, that two psychiatric hospitals had been used as gas chambers in that period. Wessley's presentation provides a pithy lesson for lawyers and advocates working at TASC. The evidence contained within clinicians' medical histories is inherently of a nature prone to error - regardless of whether those errors are made in good or bad faith. We know all too well the deference that courts confer upon expert psychiatric testimony, and how critical those reports are to the outcome of many hearings. Perhaps it is time to consider the nature of that deference and the extent to which it remains valid?

V EDUCATIVE RESOURCES FOR PROFESSIONALS IN FORENSIC MENTAL HEALTH CONTEXTS

Our time attending the Edinburgh conference demonstrated to us that there is now an increasing international recognition of the need to establish multi disciplinary teaching and learning programs in the context of mental health law. Forensic mental health services are now at a time of rapid progress. There is seemingly an endless program of revision and reform of common law legislation, facilities and services. This creates demand for the ongoing education of existing and future staff. Accordingly, new educative resources are emerging to service those needs in other jurisdictions.
The University of Edinburgh has developed a program that delivers multi- disciplinary education for both clinical and non-clinical staff designed to assist students understand the substance of the new Scottish Mental Health Act 2003. Their program uses a web-based resource to allow students to follow a forensic patient's journey through the mental health and criminal justice systems. Accordingly the content covers the nature of mental disorder, the nature and substance of the Scottish legislation, psychiatric defences, assessment and treatment, risk of harm to others, services, and the value of multi disciplinary professional relationships. The program is predominantly self-directed, is practically orientated, and uses a problem solving approach. The resources are based upon factual knowledge with questions and case scenarios that encourage reflective thinking. Each student is supported by a professional mentor.
The Weskoppies Hospital and the University of Pretoria in South Africa have established a training program for prosecutors in relation to mental health issues. After a review of their training methods, and an evaluation of the prosecutor's feedback, researchers identified that the most effective method of training in this context is one that incorporates the extensive use of interactive techniques. These techniques include the use of case studies and hypotheticals, discussion groups and debates. Thus a heavy emphasis on audience participation seems to be the preferred method of training from the prosecutors' perspective.
In September 2009, TASC will be instrumental in the delivery of Queensland's first mental health law postgraduate unit at the Queensland University of Technology. Mr Andrew Caple will coordinate the four day unit, and Ms Sue Gordon will take leadership of two specific modules that will utilise the Queensland Criminal Justice Centre's existing web-based resource. The QCJC will assist Andrew and Sue to facilitate the practical examination of important issues that affect lawyers when representing mentally ill persons charged with a criminal offence. In accordance with the international teaching and learning programs noted above, these new educative resources will utilise web-based resources and similar interactive techniques as a primary method of delivery.

VI MENTAL HEALTH AS AN EMERGING HUMAN RIGHT

In 1992 the Australian government released its inaugural "National Mental Health Strategy". One of the fundamental elements of that strategy was the "National Mental Health Plan". By April 2008 two more Mental Health Plans had been released. The initial plan intended to reform specialist mental health services by emphasising the maintenance of the principle of de-institutionalisation, while the second and third extended the scope of the first by emphasising the need for establishing interdisciplinary partnerships in order to achieve better mental health services. Those plans also widened the scope of mental health interventions to include mental health promotion, rehabilitation and the goal of successful recovery from mental illness.
In 1991 Brian Burdekin, the then Human Rights and Equal Opportunity Commissioner embarked upon a national enquiry into the human rights of people with a mental illness. He released a report (The Burdekin Report) in 1993 recommending sweeping changes to various aspects of Australia's mental health service delivery and the reform of legislation, concluding that Australia had in many ways violated the fundamental rights of mentally ill persons. Despite widespread holistic changes to Australian mental health legislation since Burdekin's report, there are concerns that the provision of mental health services remains inadequate, and that Australia is not adequately providing its citizens with the highest attainable standard of mental health.
Recent years has seen an increasing academic interest in the concept of the right to health and mental health. Article 12(1) of the International Covenant on Economic, Social and Cultural Rights refers to the right of all persons to the enjoyment of the highest attainable standard of physical and mental health. State parties to the Covenant thus have an obligation to respect and fulfil their citizen's rights in this regard. It follows that this requires member States to implement strategies to enhance health outcomes. However, the Covenant is the only major human rights instrument not included within the ambit of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Consequently, the Human Rights Commission cannot conciliate any complaints of violations of the rights contained within the instrument. Nevertheless, mental health remains a national priority and we can imply from the ratification of the instrument that Australia is prepared to support the right to the enjoyment of highest attainable standard of mental health. Academics such as Bernadette McSherry at Monash University, and others, are currently suggesting that we need to revise our mental health laws, and to develop a human rights culture in order to facilitate our compliance with these international standards. Australia's ratification of the Convention on the Rights of Persons with Disabilities in March 2007 is a step in the right direction. The Convention sets a new international standard for the promotion, protection and fulfilment of the human rights of a person with a disability. Although the Convention does not refer explicitly to "mental health" it does refer to the right to enjoy the highest attainable standard of health, and it will be interesting to see how this Convention impacts upon the provision of services to mentally disabled persons in the years to come.
VII THE RISE AND RISE OF THERAPEUTIC JURISPRUDENCE AND PROBLEM SOLVING COURTS

At New York University Law School, the International Academy of Law and Mental Health awarded Professor Bruce Winick the 2009 Philippe Pinel Prize honouring his contributions to the therapeutic jurisprudence movement. Over the following week, more than seventy conference papers were based around the therapeutic jurisprudential approach. It is now clear that its continued preference as a useful approach to legal scholarship has seen it enter the mainstream. Therapeutic jurisprudence studies the influences of law through the use of the behavioural and social sciences, and analyses how the law may increase its therapeutic effects and minimise its anti-therapeutic effects. Therapeutic jurisprudence views the study of mental health law within a normative framework; a framework that posits that the law can be utilised as a therapeutic instrument. In this sense, the rules of law, process and the functions of all of the legal players influence the mental health or "well-being" of those in contact with the justice system. This approach has much to say about styles of communication and the weight that relationships bring to bear on the legal process and the well-being of individuals.

A The Key Assumptions

1. The law has the capacity to enhance, diminish or have a neutral effect on a person's psychological well-being;
2. Substantive and procedural laws, when not in conflict with other values considered more important in justice systems, should strive to enhance the psychological well-being of a person from the moment that person becomes subject to those laws;
3. The formulation and implementation of laws should utilise knowledge from the fields of the social and behavioural sciences. Learning from the inquiries of this knowledge base will lead to more informed conclusions regarding the therapeutic consequences of legal rules and processes; and
4. Therapeutic jurisprudence does not endeavour to prove, rather it endeavours to explore.

B Therapeutic Jurisprudence ‘In Practice'

Today, it is clear that the United States and many western jurisdictions, including Australia, have applied the therapeutic jurisprudential approach extensively in theory and in practice. Developments have manifested practically in drug treatment courts; youth courts; domestic violence courts; community courts; indigenous courts; and mental health courts. It is fair to say that the therapeutic jurisprudential influence in law reform has manifested more so ‘in practice' than in theory, and it is within the specialised diversionary schemes, perhaps initially devised more for administrative efficiency rather than ideological pungency, that therapeutic jurisprudence demonstrates its evolving practical relevance to contemporary legal issues. In Australia, Astrid Birgden a psychologist at the Victorian Corrections Service generally receives acknowledgement for giving a practical implementation to the therapeutic jurisprudential approach by virtue of her work with sex offenders in correctional settings. In the context of legal decision making forums, we can trace the evolution of the approach to New South Wales in 1998; the first Australian State to introduce a drug diversion scheme. The ensuing drug court arose due largely to the persistent arguments of Ross Goodridge, a Barrister who argued that the New South Wales criminal justice system had failed to adequately address the escalating influence of drugs in crime. Goodridge suggested that the drug courts in operation in the United States would provide a model for dealing with the issue more effectively. As other Australian jurisdictions then implemented drug diversionary schemes, the emerging communication of the therapeutic jurisprudential position provided a theoretical framework for the reform of traditional responses to a range of social issues faced by lower level courts.
Today, a range of diversion schemes operate in all Australian States and Territories. In essence they provide a cost-effective and therapeutic alternative to traditional court processes and sentencing outcomes for defendants charged, for the most part, with relatively minor offences. For instance, the ‘Special Circumstances Court' operates in Brisbane comprising a specialist list, presided by a Magistrate in the absence of traditional formalities and procedures; hearing cases involving persons charged with simple offences where those persons may have "special circumstances" including, but not limited to impaired decision making capacity; homelessness; or the presence of a mental illness or disability. Such cases are most commonly disposed of via discharges and adjournments, often with treatment and welfare conditions attached, and in co-operation with social workers who can refer defendants to local social support agencies.
Although the justice systems' practical experience with problem solving approaches such as drug courts and special circumstances lists continues to evolve, it is clear on a theoretical level, these forums operationalise therapeutic jurisprudence by implementing restorative protocols and procedures that attempt to address varying underlying issues faced by defendants, in less adversarial environments. To observe such a court is to be surprised by the fundamentally diverse mode of communication between interested parties when contrasted with traditional judicial procedures. These methods include allowing defendants to speak freely and candidly in the absence of legalisms; the integration of treatment and social services; and the ongoing judicial monitoring of responses to treatment. These processes involve the multi-disciplinary collaboration between the court and not-for-profit and non-governmental organisations. In this way, a level of trust between offenders and decision makers often evolves during a period of oversight that may facilitate the meaningful and authentic change in behaviour. These procedures draw their greatest strength from the procedure itself. The interested parties generally enjoy an unfettered opportunity to speak and to listen to others. There is thus a straightforward discussion that occurs between the court and all interested parties over a flexible time period. Such communication processes engender a perception of trust and respect between the participants.
Many commentators have argued that our adversarial system, which dominates Australian mainstream courts, should adopt the approaches that are now common to these specialised problem solving courts, pointing out that the traditional court system would benefit from a better understanding and application of therapeutic jurisprudence. Therapeutic jurisprudence places a premium on fostering trust in the participants to a dispute and thereby emphasises the importance of the social abilities of legal and clinical professionals to enhance the relational interaction between themselves and all other participants in legal and clinical contexts. It is an awareness of these fundamental elements of a therapeutic jurisprudential approach and a preparedness to put them into practise that is so critical if further positive procedural reforms are to continue to evolve within Australian mainstream courts and in all legal decision making forums. It appears that this transformation is now occurring at a faster pace from a combination of economic, societal and theoretical bases. The ever expanding research published since 1998 in Australia now evidences the acceptance of the therapeutic lens as a potential tool in the process of law reform. This scholarly approach has now progressed to the point where it embodies an important symbolic meaning, and has become an indisputable component of the legal dialogue. In the United States it is clear that this approach has formed the basis of the functions of the Brooklyn Mental Health Court. Our report now turns its attention to this problem solving forum and ponders whether Queensland's forensic mental health system should consider embracing some of its features.

VIII A MODEL FOR THE RESTRUCTURING OF QUEENSLAND'S FORENSIC MENTAL HEALTH SYSTEM

A The Brooklyn Mental Health Court

The Brooklyn Mental Health Court's goals are to:
• Hold participants accountable for their actions;
• Improve the court system's ability to identify, assess, evaluate and monitor offenders with mental illness;
• Use the court's authority to link offenders to high quality treatment and other community based services and supports;
• Create better understanding and effective linkages between the criminal justice and mental health systems; and
• Improve public safety by reducing recidivism of mentally ill offenders.
Candidates must satisfy the following eligibility criteria to enroll as participants:
• A diagnosis of mental illness. The Brooklyn court uses the New York State mental health services definition, thus the defendant must have a "serious and persistent mental illness" for which there is a known treatment. In practise, this leads the court to allow eligibility only to schizophrenia, bi-polar disorder, major depression, or schizoaffective disorder;
• A guilty plea. The defendant can choose at any time to return their case to regular case processing. The terms of the plea are agreed by the judge, the prosecutor and defence. First time indictable offenders must agree to a treatment mandate of 12-18 months. Offenders with a prior conviction must agree to a treatment mandate of 18-24 months. Simple offenders agree to a treatment mandate of 12 months.
*Note that indictable charges and chronic simple offenders are accepted. Violent offences do not necessarily preclude eligibility.
1 The Mental Health Court Team
(a) Project Team
• Project director
• Clinical director
• Dedicated judge
• Resource coordinator
• Dedicated assistant district attorney
• Designated defense attorneys
• Clinical team members
(b) Clinical Team
The clinical team has offices in the courthouse and consists of:
• A social worker;
• Two full-time and one part-time forensic coordinators; and
• Consulting psychiatrist.
Frequent conferences are held between the judge and the clinical team in order to discuss general mental health issues; treatment and community services provided; and any other issues in relation to the effective and efficient operation of the court.
2 Referral and Enrollment
The process of efficient screening is an ongoing difficulty and a formal screening process is yet to be defined by the Brooklyn Mental Health Court. The difficulty arises because of the subjective nature of the initial eligibility assessment of those who come before the courts. There is of course an assumption that all persons who come before the courts are of sound mind. However, we can say that, generally, the referral process includes a discussion between the defense and the prosecutor as a result of that subjective assessment, which can only be reasonably based upon the nature of the defendant and the circumstances of each case. It is logical that defense attorneys account for most of the referrals given that they are the professionals who spend most time with the defendant. However, many referrals also emanate from fitness for trial competency hearings. Defendants who are found to be fit for trial often have mental health issues that can be monitored by the mental health court and the nature of those issues are borne out effectively in competence hearings.
After the initial referral a psychosocial evaluation is made by a social worker and that is followed by a psychiatric evaluation by a consulting psychiatrist. Both the social worker and the psychiatrist prepare a narrative report that incorporates a detailed description of each candidate. The report includes details such as the current diagnoses, substance abuse history, family history, and other individual factors. For those likely to be eligible for enrollment a treatment plan is developed, outlining a service regime consisting of mental health treatment, case management, supported housing services, substance abuse treatment (residential and out-patient), or integrated treatment for people with co-occurring mental illness and substance abuse. The clinical team then generates ideas for possible placement with appropriate community-based providers and commences the placement process, subject of course to the Judge's eventual countenance of eligibility and enrollment after a period of candidacy. All parties are active participants throughout the process including the defendant. Discussions during the candidature stage focus on the progress and timeline for the clinical evaluation, which requires input from all parties.
3 Participation and Monitoring
During the candidacy stage the clinical team meets with each defendant monthly to monitor the defendant's behaviour and mental status; to reinforce the defendant's relationship with the court; and to assist with their assessment and possible placement in the community. During this time the defendant also appears before the court so that the Judge may receive updates to the candidacy process and to provide the opportunity for the court to monitor the defendant's behaviour. Once enrolled as participants of the Mental Health Court, defendants appear at the court for monitoring on a fortnightly basis for three months, and on a monthly basis thereafter unless the Judge specifies otherwise. Directions ordering more frequent monitoring generally occur as a result of non-compliance with the participation conditions or the treatment mandate.
The clinical team also continues to monitor the defendant until graduation or termination. During this time the clinical team consults with the defendant's community placement, on a weekly basis, and provides the court with regular progress reports. The clinical team meets the defendant after each court appearance so that they may continue to monitor the defendant and to discuss any relevant issues emanating from the court appearance.
There are four phases to graduation:
1. Adjustment in Treatment;
2. Engagement in treatment;
3. Progress in Treatment; and
4. Continued Progress and preparing to graduate
Certificates are awarded at the end of each phase, which are intended to encourage participants to continue treatment and to maintain compliance. To graduate from the Mental Health Court, participants must be compliant and not commit any new offences. However, in practice a flexible approach is taken to the commission of a new offence, and this does not seem to automatically terminate a defendant's participation. The Judge will consider all of the circumstances of the case and make a decision based upon that consideration.
Participation in the court room itself becomes more streamlined when a person becomes an enrolled participant and discussions are loosely focused around a dialogue between the Judge, defense counsel and the defendant. The participatory stage focuses largely upon the consideration of the progress report; the next steps toward completion of each phase; and direct exchanges between the Judge and the participant, which are designed to foster a level of trust between the offender and court. The Judge always uses the progress reports provided by the clinical team as a basis for his dialogue with the defendant. The clinical director and the prosecutor generally remain silent unless sought by the Judge to address specific issues.
4 Incentives and Graduation
Upon graduation, simple and first-time non-violent indictable offenders have their plea vacated and all charges are dismissed. Those with a previous criminal history charges and first time violent offenders see their plea vacated and their indictable charge downgraded to a simple offence. Repeat violent felony offenders receive a probation sentence remaining in effect after graduation. These rewards represent the primary incentive for defendants to graduate from the Mental Health Court. The rewards are designed to encourage compliance with the participation conditions and with the treatment mandate. If the participant fails to comply with the mandate, the participant receives a pre-negotiated sentence determined at the time of the plea. Rewards recognise a participant's success. While sanctions may be imposed as a punishment for non-compliance, the goal is always to motivate compliance and to engage the participant in a meaningful therapeutic court process.
5 Unconventional Court Processes
In contrast to the traditional adversarial model of case processing one is immediately struck by the informal nature of the Mental Health Court experience. Qualitative studies of the court reveal that participants develop trust with the court and particularly the Judge. The Judge is willing to be addressed and to communicate with the participants in unconventional ways. For instance, the Judge will make eye contact with participants, talk with them out of turn while they are sitting in the docks, or even offer a wave to acknowledge the presence of family members when they are speaking with a defendant at the bench. The judge uses bench conferences extensively as an alternative way of communicating with all parties. Often there are issues that are considered inappropriate for airing in open court, such as where sensitive matters may prove to be private or embarrassing for the participant. At first glance, this approach seems conducive to the creation of a chaotic court lacking in orderliness. However the Judge is capable of utilising such informal techniques while maintaining an appropriate level of public order and safety.
The Judge's ability to engage the participants and all parties to the courtroom is enhanced and facilitated by a technology application at the bench. The Judge uses a specialised computer software package, which enables him to access the case history and the most recent and up to date reports for each participant. The Judge makes notes and records his comments while hearing each case, noting treatment progress, compliance with the conditions of participation, personal matters important to the participant, and other milestones in the participant's lives. This technology provides an excellent reference tool for keeping abreast of each participant's specific details as they work toward graduation.

6 Flowchart of the Brooklyn Mental Health Court Process

IX EVALUATION OF THE BROOKLYN MENTAL HEALTH COURT
This section summarises the outcome data for the participants in Brooklyn's Mental Health Court during the first 28 months of the courts operation.

A Participant Profile
Of 106 participants 51% were African/American, white defendants were 21%, Hispanics were 25% and 4% were other. 15% were homeless in the year preceding the arrest. About 75% were diagnosed with bi-polar disorder, major depression or schizophrenia. Schizoaffective disorder and other diagnoses make up the final quarter. 48% had co-occurring disorders. 69% were hospitalized at least once in their lives for psychiatric reasons; 32% had been hospitalized in the previous 12 months prior to arrest. 85% were charged with a felony and 37% of those were charged with a violent crime. 60% of participants received a 12-18 month mandate. As of September 30, 2004 72% of participants remained as an open case; 17% percent had graduated; and 7% had been terminated; 1% was warranted and 3% were remanded serving a jail sanction.

B Psychosocial Outcomes
*Psychosocial outcomes refer to variables such as recidivism, homelessness, hospitalization, drug and alcohol use, service utilization and psychosocial functioning. It is useful to refer to these outcomes rather than looking at rates of recidivism in isolation because these factors provide a holistic picture of the needs of mentally ill persons and demonstrates the range of factors that should be considered in rating the success or failure of this alternative method of dealing with the intersection of mental illness and criminality.
1 Recidivism
78% of participants had been arrested at least once as adults prior to the incident that qualified them for the MHC and 27% had been arrested at least once prior to enrolling. During the first 12 months of participation 6 participants (16%) committed a new offence suggesting a reduction in the rate of recidivism. Of the 6 participants who re-offended during their first year, 2 eventually graduated, 3 were sentenced, and terminated because of the complexity of pending federal charges.
2 Homelessness
The percentage of participants who experienced homelessness while on the treatment program decreased. 16% of participants experienced homelessness in the 12 months prior to the program and only 11% experienced homelessness in the first 12 months of treatment.
3 Hospitalization
The percentage of participants who experienced hospitalisation for their condition while on the treatment program decreased. 50% of participants experienced hospitalisation in the 12 months prior to the program and only 19% experienced hospitalisation in the first 12 months of treatment.
4 Drug and alcohol use
The percentage of participants who rated their use as dependent on drugs or alcohol decreased significantly. Similarly, the abstinent level moved from 38% to 82% after the first 12 months of treatment.
5 Psychosocial functioning
One way to measure participant outcomes is to measure their overall psychosocial functioning. The evaluation of the Brooklyn Mental Health Court used the HONOS instrument; a reliable and valid tool used by researchers, clinicians and service providers to determine a holistic score of a person's individual psychosocial functioning based upon the evaluation of a variety of health and social variables. The variables include behavioural traits; injury; illness or disability; drug and alcohol intake; cognitive problems; moods; delusions; status of relationships; activities of daily living; living conditions; and occupational status. Each variable is scored from 0 (no problem) to 4 (severe to very severe problem). Using this instrument at intake and at the 12 month study period, participants demonstrated significant improvement in almost every scale, with the most significant improvements found in scales measuring problems with cognition, depressed moods, living conditions, and occupations and activities.

X CONCLUSION

It is clear that the similarities between Queensland's Mental Health Court and the Brooklyn Mental Health Court end with their name. Queensland's Mental Health Court is a specific forum in which one Supreme Court Judge (and two psychiatrists who assist the Judge by interpreting clinical evidence) merely determines references of the mental condition of persons charged with indictable criminal offences. It is, in effect, merely a jurisdiction that determines whether a defendant was of unsound mind at the time of the commission of an indictable offence or whether a person is fit to stand trial. Queensland's Mental Health Court has no jurisdiction to monitor the case processing of offenders where they are found to be of sound mind or where they are fit for trial. In these circumstances, the case returns to normal criminal procedures. However, the mental health of the offender, while not reaching the high thresholds of the unfitness, or unsoundness of mind thresholds, is so often a factor contributing to the underlying behaviour of the defendant. These underlying factors are not treated by our criminal justice system. Recent trends in the sentencing of mentally ill offenders demonstrate that the rehabilitative purpose of sentencing is the purpose that is given the least priority by Judges and Magistrates. This system clearly, at times, results in unjust outcomes for mentally ill persons charged with criminal offences in Queensland. In contrast, the Brooklyn Mental Health Court hears cases where the high thresholds of incompetency are not reached. This system acknowledges the impact that mental illness may have in influencing criminal behaviour, and allows the Mental Health Court to proactively collaborate with treatment and service providers to facilitate the rehabilitation of the person and their effective reintegration into the community.
It is clear that Queensland has a number of issues in dealing with the collision between the mentally ill and the criminal justice system. What we have outlined above is an outline of the nature of the Brooklyn Mental Health Court. This jurisdiction represents a framework, proven to be efficient and economical, and one that may inform further amendments to Queensland's forensic mental health system. It represents a template for the provision of a system that engages in preventative law, improves public safety and reduces the high costs of incarcerating mentally ill offenders. The Brooklyn Mental Health Court achieves this by fostering greater levels of mental health in those who are charged with criminal offences, representing a net increase in the overall health of the community as a whole.

XI RECOMMENDATIONS

1. Establish strategic partnerships with tertiary research institutions in order to collaboratively deliver educative resources in the area of mental health law. These partnerships should enable the establishment of collaborative research projects based around the objective of providing evidence of the need for law reform in the context of mental health law.
2. Create and publish a Disability Law Project Model.
3. Undertake a formal qualitative study of the Ipswich Disability Law Project in order to provide empirical evidence of the project's efficacy.
4. Establish a dedicated research sector within TASC to lead the organisation's law reform agenda. The research sector would engage in a number of projects including but not limited to:
o A qualitative study of the Special Circumstances Court using the evaluation of the Brooklyn Mental Health Court as a template.
o A comparative analysis of the Special Circumstances Court and the respective Mental Health Courts in Queensland and Brooklyn. The analysis would aim to demonstrate the potential efficacy of reforms for Queensland's jurisdiction. It would also provide insight regarding whether, how, and for whom Mental Health Court type models may work.
o Planning for a comprehensive law reform submission to the Queensland Law Reform Commission.
o Planning for the establishment of a bi-annual journal based upon the theme of "access to justice" and law reform. This would facilitate the establishment of an enhanced research and law reform culture within community legal services.