Mental Health Coordinating Council’s submission sets out proposed reforms to strengthen the forensic mental health system and the work of the NSW Mental Health Review Tribunal. It calls for changes that improve openness, victim support and public trust, while keeping the Tribunal’s focus on treatment, different areas of expertise and human rights.

Purpose of the Submission

Mental Health Coordinating Council (MHCC) has made a submission to the NSW Parliament’s Inquiry into the forensic division of the NSW Mental Health Review Tribunal.

Our submission looks at how the forensic mental health system can better meet the needs of the community, victims, and forensic patients. We welcome the chance to contribute to this inquiry, drawing on our earlier work on forensic mental health reform and also responding to the inquiry’s Terms of Reference.

We support an approach that protects victims and the community, respects people’s rights, and helps forensic patients receive treatment, recover, and return to the community where possible.

Background

NSW Parliament’s Committee on Law and Safety has started an inquiry into the forensic division of the NSW Mental Health Review Tribunal. The Tribunal makes decisions about the treatment, leave, detention and release of forensic patients.

The Inquiry comes after recent changes to the Mental Health Act 2007 and the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. It will look at how recent changes to mental health laws are working in practice, whether recommendations from the 2018 review of the Tribunal have been implemented, and whether any further changes are needed.

Why this matters

These issues affect how fairly and safely the forensic mental health system works.

• Recent changes to the law were made with limited consultation and without clear public evidence to explain why they were needed. This raises concerns about openness, fairness and whether the sector was properly involved.
• The forensic jurisdiction must keep the community safe and support victims while also respecting the rights, treatment, recovery and rehabilitation of forensic patients — not treat these as competing priorities.
• There is a risk that media coverage, public concern and political pressure may lead to decisions that are more restrictive or focused on punishment, instead of treatment and evidence.
• Victims and families must be treated with seriousness, sensitivity and respect, but reforms must avoid creating processes that are unfair, retraumatising or disproportionate.
• Independent reviews must happen regularly to make sure restrictions placed on forensic patients are still needed, proportionate to offence, and support treatment, recovery, rehabilitation and safe return to the community.
• The Tribunal should keep its multidisciplinary and therapeutic role, with a strong focus on rights. Its decisions should also consider housing, psychosocial support, cultural needs, family and carer involvement, and connection to the community.
• The current wording and aims of the Act do not give enough attention to recovery, civil rights, supported decision-making or care in the least restrictive setting. The Act should be updated to better reflect current human rights standards.

Key issues

• Limited community support can make safe reintegration harder. Without stable housing, psychosocial and disability support, social connection, culturally safe care, family or carer involvement, and meaningful activities, people may face greater barriers to recovery and an increased risk of returning to crisis.
• Community-managed organisations aren’t properly recognised as part of the forensic system. These organisations often provide the practical and recovery-focused support people need to move safely from hospitals or custodial settings back into the community.
• Risk management can sometimes override recovery. Focusing too much on risk, detention or control can take attention away from the supports that improve safety, wellbeing and long-term recovery.
• Gaps in services make safe transition harder. Forensic patients may struggle to access suitable housing, psychosocial support, NDIS services, culturally appropriate care and specialist community programs. Support can also be fragmented across health, housing, disability and community services.
• Support does not always continue throughout the process. People need coordinated support across mental health care, housing, disability services, family support and community services. Support should not be short-term or disconnected.
• Less restrictive options depend on having available community services: Decisions about leave, conditions and release can only work when there are enough funded services in the community to support people safely.
• People with lived experience and their families aren’t always involved. Support planning should reflect the person’s own goals and needs. Family, kin, carers and other supporters should be included where appropriate.

Our recommendations

1. Maintain six-monthly independent Tribunal reviews. Each person’s progress, treatment, recovery, rehabilitation and safe return to the community must be regularly checked.
2. Retain and strengthen the Tribunal’s therapeutic, multidisciplinary and rights-based role. Its decisions should be informed by legal, clinical, psychosocial, disability, cultural and lived experience perspectives.
3. Change the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. Aims must clearly include recovery, rehabilitation, least restrictive care, human rights, supported decision-making and participation in care and treatment.
4. Make sure any limits on leave, release or communication are based on evidence, necessary, proportionate, time-limited and regularly reviewed. These should not be imposed as blanket or punitive measures.
5. Improve openness and consultation when forensic mental health laws are changed. People with lived experience, families and carers, victims’ representatives, community-managed organisations, Aboriginal and Torres Strait Islander organisations, clinicians, legal experts and the wider mental health sector should be part of the conversation.
6. Strengthen community-based supports that support safe reintegration. Housing, psychosocial support, culturally safe services, disability supports, family and carer support are important for meaningful social and community connection.
7. Recognise and fund community-managed organisations as part of the forensic system. Clear referral pathways, shared risk arrangements, workforce development and training are essential.
8. Improve support, communication and participation for victims in ways that are trauma-informed, fair and proportionate. At the same time, these processes should not weaken the rights of forensic patients or become unnecessarily adversarial.
9. Bring the forensic system into line with developing human rights protections in NSW. This includes rights relating to liberty, humane treatment, privacy, family life, health, equality, fair processes and freedom from discrimination.
10. Require public reporting on how the Forensic Division supports least restrictive practice, rehabilitation and safe community reintegration. This sits alongside its responsibilities for victim interests and community safety.

What happens next

The Committee on Law and Safety will review the submissions it receives. It may also invite individuals and organisations, including mental health sector representatives, to give evidence at public hearings.

After the inquiry, the Committee will give the NSW Parliament a report outlining what it found and what changes it recommends to laws, policies or services.

Public hearings are being held on 10 August and reporting date is yet to be confirmed. MHCC will monitor opportunities for further engagement and keep members and the sector informed.