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Justice Action Draft – 3/12/12



In 2008, Justice Action was successful in campaigning against the lockdown of forensic patients in their cells for up to 18 hours a day. Four years later, to our surprise, reports have surfaced from inside Long Bay Prison Hospital which state that patients are now being held in their cells for up to 23 hours a day. The deeply disturbing nature of these reports is exacerbated by a refusal from the management team at Long Bay to acknowledge the matter. The consequence of this is a distressing violation of human rights that the 2008 campaign fought so hard to prevent.

These reports focus on the conditions in which Malcolm Baker, a 65 year-old prisoner who has already served 20 years, is currently subject to. Malcolm is classified as mentally ill yet confined to his cell for 23 hours a day, forcibly medicated and generally held in distressing circumstances. His situation and those of many like him highlight the unacceptable practices currently adopted towards some mentally ill persons.


Effects of Isolation

The severe effects of isolation on an individual’s mental health have been well established. Paul Mullen, the Clinical Director of Forensicare has unambiguously stated:

“The placing of mentally disordered individuals in effective isolation for a large part of the day is likely to be even more potentially distressing and disturbing than it would be to the general prison population. In my opinion a regime which leaves a mentally ill person isolated for upwards of 18 hours a day is a recipe for inducing a deterioration in their mental health and potentially an exacerbation of self destructive and aggressive behaviours.”


This statement, issued in response to our 2008 campaign against 18-hour lock-up times, is even more pertinent in current circumstances. It is recognised among psychiatric professionals that seclusion for the mentally ill should only be adopted in the best interests of the patients, in order to prevent harm to themselves or others. For Malcolm Baker and others like him, who pose no threat to staff or other inmates, their best interests are being ignored.

Such concerns have been echoed by numerous organisations such as the Council of Social Service of NSW and the Human Rights and Equal Opportunity Commission. Each highlight the importance of treating psychiatric patients in the least restrictive environments possible, the fact that NSW is not doing so is contrary to both national trends and international obligations. Some

of these concerns are detailed below:

The Human Rights and Equal Opportunity Commission (HREOC): "There is ample evidence of the harm that may ensue from extended periods in isolation for forensic patients and people with mental illness. Both the increased period of lock down and the fact that forensic patients are being housed within general correctional facilities is of serious concern to HREOC. These approaches are contrary to national trends and international treaty obligations.”

The Aboriginal Justice Advisory Council: “Confining vulnerable or ill individuals in their cells from 3:30PM especially during the warmer months, as well as depriving them of health care, it is argued, is harsh and additional punishment to the sentence imposed."

The Council of Social Service of NSW: “NCOSS believes that the practice of locking inmates in their cells from 4pm until the following morning will have a detrimental impact on the health of inmates as it will result in restricting access to and the delivery of health care to patients.”

Bruce Westmore, Forensic Psychiatrist: “What is critically important in terms of psychiatric care is that patients should be managed in the least restrictive environment possible”

Brett Holmes, NSW Nurses Association: “There is a wealth of evidence that indicates isolating mentally ill persons exacerbates their symptoms and increases their risk of harm. They require human contact and interaction to improve their mental health”

David Crosbie. Former CEO of the Mental Health Council of Australia: “Apart from the serious human rights issues this raises, this situation also leads to more complex and potentially volatile problems in the system and increases the likelihood of avoidable expensive acute care… Isolation is the enemy of good mental health and your Government must take steps to ensure that the health of prisoners under your care is properly managed."


Development Of The Issue

Prior to the opening of the Long Bay Hospital in 2008 patients were being locked in their cells for 18 hours a day as a precursor to the opening of the new facility. In a motion by the Greens party during the 2008 campaign, Sylvia Hale not only stressed how unnecessary and detrimental these actions will be for the health of these patients, but also suggested it was “clearly a betrayal” of the assurances made by the former Minister of Health in 2004 in relation to the new facilities. These assurances provided that “The quality of the health service provided will improve. Forensic patients will no longer be housed in a correctional centre, but in a Health facility that will be purpose built to cater to their needs.” The most recent lockdown of patients in their cell for 23 hours a day in the Forensic Prison Hospital shows a complete lack of care for the patient’s needs and a contradiction of the guaranteed improvements in health services the Long Bay Hospital was intended to make. In fact, the opening of the Long Bay Hospital has had the effect of restoring care for some, while eradicating it for others.

In 2003 the NSW Government approved the construction of the Forensic and Prison Hospitals at Long Bay. This would have the effect of separating those offenders who were sentenced on the basis of the existence of a mental illness from those offenders who were sentenced in the absence of a mental illness but developed one during their time in prison, such as Malcolm. Before this restructuring, both groups of prisoners were entitled to the same ‘set up’ and prison conditions. They were provided with the same clinical diagnosis, health needs and security restrictions because after all, they were all there for the same reason and for the same health requirements. However, with the new separate hospitals these entitlements changed substantially. Consequently, the separation caused an imbalance in the clinical treatment of forensic patients based on the way by which they were admitted to the Hospital.

Prisoners sentenced with a mental illness are now held at the Long Bay Forensic Hospital under the control of Justice Health. While prisoners who have developed a mental illness during their sentence, such as Malcolm, are held at the Long Bay Prison Hospital under the control of the Department of Corrective Services combined with Justice Health. Those in the Forensic Hospital ‘physically’ have more rights in regards to the time spent in their cell as they are allowed out of their cells for a substantial amount of time per day. However, those at the Prison Hospital are subject to different regulations, being held in their cell for up to 23 hours a day. Further, those in the Forensic Hospital are entitled to nominate a Primary Carer, someone from outside the hospital such as a friend or family member who can be given information about the patient regarding their diagnosis or treatment plans. This is in contrast to those in the Prison Hospital who do not have access to a Primary Carer.

In this context it is important to understand the legal distinctions between these two classes of patients and what reasons there are, if any, to deny them equal care.


Legal & Mental Distinctions: Forensic Patients v Correctional Patients


The chief legal distinction between these two types of patients arises out of the results at trial:

  • An accused tried under s 25 or s 39 of the Mental Health (Forensic Provisions) Act 1990 (‘MHFP’) are found to be not guilty by reason of mental illness and become forensic patients.
  • An accused tried in the standard fashion and found guilty at trial but develops a mental illness subsequently is considered a correctional patient.


In accordance with the James review, the bill recognises that those who are transferred for care or treatment have a quite different status from that of forensic patients. Forensic patient status will generally apply to a person who has been found not guilty of a crime due to their mental illness or who has been found unfit to stand trial. Correctional patients, however, will be persons who are subject to a sentence of imprisonment after having been found guilty of a crime or who have been charged with a crime and refused bail. The bill recognises the legal distinction between these two classes of patients by classifying inmates and persons on remand who are transferred to a mental health facility as "correctional patients". Correctional patients will have the same access to mental health treatment as forensic patients, but correctional patients will remain subject to their sentence of imprisonment, including the laws and processes that follow from that status.”(Hansard - Mr Paul Lynch, 27 June 2008)


The key question to ask however is - if these two types of patients are both considered mentally ill, why are they treated differently in custody?


This present discussion concerns the ‘lock-up’ times in Long Bay Prison Hospital which houses correctional patients (23 hours a day) and Long Bay Forensic Hospital, in which forensic patients are subject to considerably less lock-up time. The rationale for these different treatment regimes is further confused when it is taken into that that before the commission of these new facilities, both types of patients were housed in the one hospital and subject to the same conditions, and a lock-up time of 13 hours.


Legal Distinctions

The MHFP is the chief regulatory regime governing the treatment of both forensic and correctional patients. Section 41 and 42 of the Act define each classification:

41 Definitions

“correctional patient" means a person (other than a forensic patient) who has been transferred from a correctional centre to a mental health facility while serving a sentence of imprisonment, or while on remand, and who has not been classified by the Tribunal as an involuntary patient.

42 Forensic patients

For the purposes of this Act, the following persons are "forensic patients":

(a) a person who is detained in a mental health facility, correctional centre or other place, or released from custody subject to conditions, pursuant to an order under:

(i) section 14, 17 (3), 24, 25, 27 or 39, or

(ii) section 7 (4) of the Criminal Appeal Act 1912(including that subsection as applied by section 5AA (5) of that Act),

(b) a person who is a member of a class of persons prescribed by the regulations for the purposes of this section.


Notably section 76B of this Act stipulates that the principles of care and treatment outlined in s 68 of the Mental Health Act 2007 apply to both correctional and forensic patients. Therefore both are entitled to:

  • (a) The best care in the least restrictive environment possible
  • (c) The provision of care and treatment should be designed to assist people with a mental illness or mental disorder, wherever possible, to live, work and participate in the community,
  • (f) Any restriction on the liberty of patients and other people with a mental illness or mental disorder and any interference with their rights, dignity and self-respect is to be kept to the minimum necessary in the circumstances,
  • (i) people with a mental illness or mental disorder should be informed of their legal rights and other entitlements under this Act and all reasonable efforts should be made to ensure the information is given in the language, mode of communication or terms that they are most likely to understand


In terms of security arrangements, s 76D(2) provides:


76D Security conditions for patients

(1) A forensic patient who is detained in a mental health facility or other place (other than a correctional centre) or absent in accordance with this Part is to be subject to any security conditions that the Director-General considers necessary.

(2) A forensic patient who is detained in a correctional centre or in any part of a correctional centre that is a mental health facility, or a correctional patient who is detained in a mental health facility or other place or absent in accordance with this Part, is to be subject to security conditions in accordance with relevant legislation and with a protocol agreed between the Director-General and the Commissioner of Corrective Services or the Director-General of the Department of Human Services (as the case requires).

(3) To avoid doubt, for the purposes of subsection (2):

(a) any part of a correctional centre that is a mental health facility is taken to be a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 , and

(b) a forensic patient or correctional patient who is detained in that facility is taken to be an inmate within the meaning of that Act and that Act and the regulations made under that Act, apply to any such patient, subject to any modifications and to the extent specified by the regulations.


From this legislation, particularly s 76D(2), it appears that ‘lock-in’ times for correctional patients will be determined largely by an agreement between the Director General of the Health Department and the Commissioner of Corrective Services. The ‘relevant’ legislation would be the Crimes (Administration of Sentences) Act 1999 which notably states:

  • s72A ‘An inmate must be supplied with such medical attendance, treatment and medicine as in the opinion of a medical officer is necessary for the preservation of the health of the inmate, of other inmates and of any other person.’


Also the Crimes (Administration of Sentences) Regulation 2008 which provides the Commissioner with wide discretionary powers for classifying, administering and setting lock-in times and the routines of correctional centres. Notably s 50 of this regulation mandates at least 2 hours of open-air exercise per day.


There does not appear to be any other considerations in terms of lock-up time in that legislation. What may also be considered ‘relevant legislation’ are the provisions for care and treatment in s 68 of the Mental Health Act 2007.


Therefore at a legal level, correctional patients differ in terms of ‘security arrangements’ by virtue of the discretion of the Director-General, s76D MHFP. A correctional patient is subject to a protocol between the Director-General and the Commissioner of Corrective Services as well as any relevant legislation such the Crimes (Administration of Sentences) Act 1999, the regulation of the same name and both the mental health acts. Therefore there is greater scope to rely on such provisions like s 68 of the MHA for correctional patients to lessen their restrictive arrangements if it is found detrimental to their health.


Mistreatment of patients


Notably: s 69 of the MHFP act provides that:


69 Offence to ill-treat patients

An authorised medical officer, or any other person employed at a mental health facility, must not wilfully strike, wound, ill-treat or neglect a patient or person detained at the facility under this or any other Act.


In the Hansard (28.10.2008) for the passing of the Mental Health Legislation Amendment (Forensic Provisions) Bill 2008 this provision was interpreted as preventing the detention of patients for 18 hours a day. It is then equally applicable to address the detention of correctional patients upwards of 23 hours a day.



An analysis of the legislation leads to the conclusion that standards of treatment are left largely to the discretion of the relevant authorities, there is no legal requirement that correctional patients be treated differently. That they choose to exercise their discretion contrary to the mental health needs of inmates is an injustice that should not go unaddressed.


The opening and restructuring of Long Bay Hospital has merely validated the importance of care for those in the Forensic Hospital while largely ignoring the health services required for identical patients in the Prison Hospital. The lockdown of patients for 23 hours in their cell is evidence of a complete lack of care for those mentally ill patients in the Prison Hospital. As we successfully emphasised in the 2008 campaign, lockdown for extended periods of time has the effect of exacerbating mental illnesses and this was agreed upon by an abundance of supporters. Justice Health and the Department of Corrective Services have an obligation to these vulnerable prisoners to provide health services in which the current and future health and well-being of patients is at the forefront of their concerns.

There is no question that the lockdown of mentally ill patients in their cell for up to 23 hours a day is damaging to their mental health. This was confirmed in 2008 by a number of educated and professional sources and is emphasised today in response to the current lockdown. The construction of the Long Bay Hospital in 2008 has in fact created an imbalance in the treatment and the standard of treatment for forensic patients, resulting in a lack of care that contradicts the intentions of the construction. Consequently, those patients in the Prison Hospital are increasingly isolated and their illness exacerbated.

It is unfortunate that these abuses are not being addressed by the current Review of the Mental Health Act, to which Justice Action has made a submission. In order to spread awareness of these conditions, we have issued a media release which can be accessed here.


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