Envisioning Next Generation Mental Health Courts for Australia

This thesis undertakes a critical analysis of the policies and practices of Australia’s four mental health courts using the net-widening framework as espoused by Stan Cohen in Visions of Social Control. Mental health courts have been established in Australia as a response to the over-representation of offenders with mental illness in prisons and criminal justice systems more broadly. These courts use a problem-oriented court model to address the challenges that courts and justice systems face in dealing with offenders with mental illness. While there is some evidence that mental health courts are having positive outcomes for some offenders, there has been little critical reflection on whether there are unintended consequences arising from the implementation of mental health courts and whether the rationale for these courts is logically consistent.
   Drawing on the Australian literature and from the United States, mental health courts are analysed through the lens of the wider, denser and different nets framework. The thesis concludes that although the evidence of net-widening is limited, the framework highlights numerous problems with the way that mental health courts are operating. These problems are found at the front-end of mental health courts: in eligibility criteria, selection and assessment processes, informed consent procedures and acceptance into mental health courts. Further, there are concerns with the way in which that mental health courts operate at the ‘back-end’ such as the length of the program, use of conditions, assessment of compliance and use of sanctions and rewards. In Australia, the lack of information about and transparency of many of these procedures is troubling.
   Recommendations are made for next generation Australian mental health courts including reconceptualising the rationale of these courts, and addressing their problematic policies and practices by way of legislation, procedural manuals, and evaluation. This thesis also recommends that jurisdictions wishing to address the over-representation problem must develop comprehensive responses to offenders with mental illness at different points of the criminal justice continuum with different court-linked interventions, such as mental health courts, that have clearly defined rationales, objectives and target groups of offenders.