Academic journal article University of Western Sydney Law Review

The Role of Victims in NSW Forensic Patient Proceedings

Academic journal article University of Western Sydney Law Review

The Role of Victims in NSW Forensic Patient Proceedings

Article excerpt

CONTENTS

I   INTRODUCTION
II  OUTLINE OF NSW FORENSIC PATIENTS SCHEME
III NSW FORENSIC PROVISIONS RELATING TO VICTIMS
IV  OTHER AUSTRALIAN JURISDICTIONS' APPROACHES
V   KEY ISSUES AND COMMENTARY
VI  CONCLUSION

I INTRODUCTION

While victims of crime has become a topic of increasing academic interest over the past 40 years, particularly with respect to the role of victim impact statements, one group of victims has thus far received relatively little attention. (1) This group comprises the victims of offences by forensic patients, the latter being persons who have been found by a court to be 'not guilty by reason of mental illness' of the offences for which they are on trial ('NGMI'). This is an especially complex and problematic area because the proceedings are fundamentally different to criminal law proceedings. The law recognises under an NGMI that the person does not have legal responsibility for the commission of a crime. Nevertheless, there are clearly victims of the acts, being either direct victims or family or friends. Moreover, in a number of cases involving NGMI, the circumstances are horrendous involving homicide or serious physical and mental harm. A large number of index offences involve murder, attempted murder, manslaughter and serious assaults. (2)

This paper examines the current legal, administrative and policy responses to the victims of forensic patients before the New South Wales Mental Health Review Tribunal. In particular, the paper assesses the new legislative measures relating to such victims under the Mental Health (Forensic Provisions) Act 1990 (NSW). (3) First, the paper outlines the NSW forensic patient scheme and the new provisions on victims. The paper then considers the approaches of other Australian jurisdictions. The next section identifies and discusses key issues such as balancing victims' rights against the rights of patients, the provision and content of written and oral submissions by victims, confidentiality, methods of participation (in person, by video and telephone), and information and education for both victims and Tribunal members and staff. The paper concludes by discussing some reforms and proposals to help make these provisions work fairly and effectively.

The paper draws upon the personal experience of one of the writers who was President of the NSW Mental Health Review Tribunal from 1990-2000. (4) We have also had informal consultations with a number of members of the Tribunal and those discussions have provided us with valuable information and insights. We thank those people for their contribution. However, the views expressed in this paper are those of the writers alone and do not purport to reflect the views of the Tribunal or any members of it.

We use therapeutic jurisprudence as an analytical tool, which argues that the law acts as a therapeutic agent, meaning that the law can have therapeutic or anti-therapeutic consequences. The objective of the theory is that the therapeutic consequences should be maximised but that in achieving that end, due process principles and primary legal principles should not be subordinated. (5) In mental health proceedings this involves balancing the legal and therapeutic rights and interests of participants and in particular shaping legal processes and outcomes as much as possible to maximise positive therapeutic outcomes such as improving the well being of the patient. (6) For the purposes of this paper, the discussion of therapeutic consequences is focussed on the rights and interests of patients and victims in forensic proceedings both of which groups may have significant legal, psychological and emotional interests at stake, together with a consideration of the interests of the community as a whole. In general terms, the legal rules relating to victims in forensic proceedings should as much as possible contribute to the psychological health of both patients and victims without infringing procedural fairness. …

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