This year Victoria joined the international trend to keep offenders with mental health problems out of the jail system and into specialised, problem solving courts. Luke Williams reports from Victoria's new mental health court

It's mid-morning at Victoria's new mental health court. The Magistrate asks a program client with a severe psychiatric condition why he hasn't been attending his court-ordered appointments with a social worker. "Well I did like going," he says, with the worker sitting by his side, "Then I found out she works for the cops".

The criminal justice system has traditionally had a complicated and often unsatisfactory relationship with offenders who have mental health problems. Whilst there are no definitive statistics on mental health and crime in Australia, the research has consistently shown that between 60 and 80 per cent of prisoners have psychiatric conditions. It's also estimated that over a third of defendants appearing in court have a diagnosable mental disorder. Of particular concern is that offenders with mental health problems usually have significantly higher rates of recidivism than the general offender population.

Striking a balance between retribution and rehabilitation has been made more difficult by mounting evidence indicating that incarceration and even court processes often aggravates offender mental health problems. Subsequently, the same offenders get stuck in a "revolving door" criminal justice experience, where the underlying problems are not just ignored, they are often worsened.

"We had one man with an intellectual disability who was so terrified of being in a court room that he cut-up all his clothes just before he walked in, because he thought that would mean he wouldn't have to attend" says Viv Mortell, program manager of the court. "In this setting it's less formal, it's a problem solving approach and participants are put on individual support plans with achievable goals like going to see a neurologist or joining a community group."

The mental health Assessment and Referral Court (ARC List) at the Melbourne Magistrate Court began operation in April this year. The $13 million, three-year pilot aims to rehabilitate people who have a significant mental illness, impairment, brain injury or intellectual disability which contributes or causes them to commit crime by addressing the underlying factors which lead to their offending behavior.

The ARC List follows similar courts in South Australia, Tasmania and Queensland, although its hybrid model is derived largely from Toronto's Mental Health Court and Diversion program. The ARC List's round-table, discussion based approach comes from Victoria's Koori Court.

"We are offering a therapeutic jurisprudence," says List Magistrate John Lesser, who was president of the Mental Health Review Board for ten years, before his appointment. "Participants remain on the list for between three and twelve months. At the end, if they have met all their goals, they can be sentenced in this court and discharged from guilt ... However, some of them will be sentenced to jail or put on community-based orders if we are left with no other choice".

Research from the mental health court in Adelaide shows the most common types of mental health problems amongst court participants are depression, trauma and schizophrenia. While the most common types of crimes amongst the mentally-disordered are assault, larceny, property and driving offences.

"Often their crime comes as a result of poverty caused by homelessness, drug and alcohol issues or inappropriate reactions to situations," says Lesser. "In one case, we had a man who had frontal lobe brain damage, this meant he had no impulse control. So he just walks into shops and takes clothing off the racks and walks out with it.

Lesser and Mortell both say they have been particularly surprised with the number of List participants who are found to have an acquired brain injury.

"Often it's the case that it's been previously undiagnosed until we sent them for a neurological scan...it has been appearing in people who often already have some sort of psychiatric condition or abusing substances. So it might be that they either have brain damage from a fall or an assault while intoxicated or they have actual brain damage from alcohol abuse," Mortell says.

An older female participant at the court tells Lawyers Weekly that since joining the List she has finally got the medical care she needed after starting an individual support plan only a few months ago.

"I finally have a psychiatrist and a psychologist and have been put on the right medication" she says "I am really determined now, I am not going to re-offend because I am now able to think about the consequences. I've suffered depression and anxiety for so long, now I honestly feel saved by this program".

Mental Health Courts were first introduced to North America in the 1980s as a spin-off of the drug court model. They are present in more than thirty different states and most cities in Canada. The United Kingdom also now has similar diversionary schemes in magistrate courts designed to identify mentally disorder defendants. Globally, there are now over 300 mental health courts and the number is steadily increasing. While they take many different models, the biggest challenge for these courts is reducing recidivism.

While South Australia and Queensland have mental health courts catered to "mental impairmen" type defenses, Tasmania remains the only state in Australia to have researched the impact of the courts on recidivism. The results have been encouraging; researchers found that in the six months following finalisation of the court program only eight per cent had committed an offence. Of that eight per cent, close to 80 per cent of the participants reduced their rate of re-offending.

Internationally, the biggest study on the effectiveness of mental health courts on long-term recidivism rates comes from the United States. Thousands of offenders in the mainstream court system were compared to participants in a mental health court in San Francisco by the University of California. Eighteen months after the completion of the program, mental health court participants were 26 percent less likely to be charged with any new crime and 54 per cent less likely to be charged with a violent crime.

However, the List is considerably more expensive than mainstream courts and a thorough evaluation will need to show significant reductions in recidivism, jail time and efficiency to indicate a clear cost-benefit analysis and ensure future funding.

The other potentially contentious question is whether it will ever be expanded to hear more serious offences. While no Australian mental health court program deals with serious indictable offences, most of the equivalent courts in North America handle the full range of offences.

Lesser thinks community attitudes, victim retribution and the political sensitivity of law and order issues will be the biggest barriers to the expansion of mental health courts into the future.

Mental health courts are also not without their critics from within the mental health sector. Some suggest that the courts actually deepen a person's involvement in the criminal justice system, especially in cases where they have committed only a minor offence.

"I think we need to make sure the List doesn't create greater restrictions on a person's autonomy. Administration orders can often be a severe encroachment on somebody's life and sometimes people can have their perceived needs over-serviced," says Catherine Leslie, Policy Officer with Melbourne's Mental Health Legal Centre.

Then there are, of course, dangers in overstating the effectiveness of any court in such a fraught area of mental health, law and society. Lawyer and Forensic Psychologist, Professor James Ogloff, head of Psychological Services at Forensic, believes the List is a positive step, but reform is needed right across the justice system.

"The court can't solve any of the problems regarding shortages of services in prisons and the forensic mental health services...many issues still exist for mentally ill prisoners who are transitioning back to the community ... I have come to the view that an agency or commission needs to be established that takes a whole of government approach to this issue".

Demand is reported to be already exceeding the capacity of Melbourne's new court and there have already been many referrals to the List which have not been accepted. The team at the List seem to genuinely believe those they are helping are already showing signs of improvement. "The man who used to come in with clothes cut-up now comes into court happy, well-dressed and shakes the Magistrate's hand," Mortell says.

As one female participant, a young mother, says as she stands on the steps of the Magistrates Court lighting a cigarette with her lawyer, "the Magistrate here talks to me like I'm a real human being - an actual person, I don't normally get that."