We are most concerned about the mental health legislation that is ready to pass the NSW Upper House around the 20th of November. The proposed secrecy for Victim Impact Statements (VIS) denies the forensic victim and offender involvement in the restorative justice process. It is The Mental Health (Forensic Provisions) Amendment (Victims) Bill 2018, See schedules 1(8) and 3(2). Research report.
This would mean that the victim does not engage with the offender and achieve an understanding of why the event occurred, and a possible reconciliation. There is no similar provision in the criminal law, as secrecy negates the intention of the VIS. It is a misunderstanding of the whole process.
Research resoundingly supports the benefits to victims achieving that sense of reconciliation with the actions of the offender. The VIS provides a chance for the offender to be confronted with the effect of the offence, and to acknowledge it. Whole processes like circle sentencing, youth conferencing etc are based upon those principles. Restorative justice builds community through forgiveness.
There must be a chance for the forensic patient to ask for forgiveness and have a chance at reconciliation. Often families include both victim and offender, who are all part of this pain and must be supported socially and professionally to heal and move on with better understanding of each other’s needs. To avoid that is to cause more disarray in the longer term. Hearings with the Mental Health Review Tribunal considering leave or release of the patient have the secret VIS tendered each time and are set up to perpetuate the wrong. The forensic patient never knows who said what things against them. Was it my sister or mother’s statement that is holding me here? That situation causes more damage, disempowerment and withdrawn responsibility for the mentally ill person.
The idea that mentally ill offenders are entitled to less rights than those who consciously offended, is a misunderstanding of the basic principles of discrimination law and fairness. It relegates such offenders to having less standing in the court, and infringes upon a fundamental procedural right of our legal system. Lies would be told and never confronted.
It is bullying unpopular and vulnerable people in an attempt to satisfy the pain of the victim, whipped up by the media interest. It’s a King Hit with the system blindfolding the offender and assuming some satisfaction to the victim in that process. In practice it would be dishonest, disgraceful and serve no useful purpose.
This legislation should not be passed in this form, as it is simply the Government responding to media attention without proper analysis and understanding.
This legislation in context.
In 2017 there were three major NSW Inquiries around mental health: the Parliamentary, Wright and Whealy Inquiries.
The Parliamentary and the Wright Inquiries assessed the case of Ms. Miriam Merten who died in 2014 following a brain injury after she fell more than 20 times whilst in the care of Lismore Base Hospital. The death of this patient was captured on CCTV, exposing the callous culture of the mental health system. However, no amendments have been proposed to prevent actual patient deaths due to Health Department employees’ misbehaviour. Section.195 of the Mental Health Act protects perpetrators and remains.
Removing patients’ phones so they can’t have family support or independent advice breaches their right to communication but continues. Computers for communication, personal development and support still are absent. There are no structural changes giving power to the consumers and their families, or standing objective accountability such that embarrassed the whole system with the truth. Instead we have nineteen recommendations that won’t make a difference. Mental patients continue to be abused and exploited with no objection.
The Whealy Inquiry examined the effect of frequent notification to victim’s families of Tribunal hearings. These caused a mother to keep revisiting the traumatic death of her child. Her response was to involve the media, leading to the case becoming sensationalized. The Whealy Inquiry story had a sympathetic victim and a de-humanised villain who was easy to hate and fear, as expressed in the Daily Telegraph article on April 1st 2017 which implied that the Mental Health Tribunal was putting “mad killers back on the streets,” unfounded concerns that were stimulated by insensitive bureaucratic notifications. By sensationalising the story about the disturbed mother of a victim, the media created a storm that was appeased with the Whealy Inquiry. New laws against mental patients are rushed in.
But the government continues to mistreat victims. Compensation was reduced from $50,000 to $15,000 in 2013 despite calls for its return. In practice, the proposed amendments would deny victims the opportunity to properly engage with the offenders and prevent the offender from understanding the impact of their actions, inhibiting the chance for both parties to be part of the restorative justice process.