NDARC Postdoctoral Research Fellow Dr Christel Macdonald was recently awarded a research grant from the Australian Institute of Criminology (AIC) to explore the impact of legislative changes on mental health diversion in the NSW Local Court.

The project is titled ‘Has reform delivered? A mixed-methods study of diversion outcomes and case processing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020’. Dr Macdonald writes about the importance of this research.

The overrepresentation of individuals with a mental illness or cognitive impairment in the criminal justice system is a national issue affecting all Australian jurisdictions. High rates of mental illness have been found in national surveys of Australian prisoners, in individuals presenting to court and in police detainees across several states.

To tackle this problem of over-representation, all states and territories within Australia have developed their own schemes to divert individuals with a mental health or cognitive impairment away from the courts and into treatment. Some states operate via a mental health court, while others, like New South Wales, utilise specific legislation.

What is the reform?

Prior to 2021, court diversion in New South Wales occurred via Sections 32 and 33 of the Mental Health (Forensic Provisions) Act 1990. Historically, several issues have been raised about the 1990 Act, including that the provision was under-used, non-compliance was not reported to the courts, treatment or support plans and assessment were difficult to obtain, and the six-month enforceable limit of an order was too short. Additionally, the lack of a clear definition of a ‘mental health impairment’ has been argued as a source of confusion for legal and clinical practitioners and defendants.

In 2021, new legislation came into effect in NSW. The new Act is called the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, and involved a number of changes, including:

• Increasing the enforceability of a diversion order from six months to 12 months
• Providing a clearer definition of mental health impairment (notably excluding individuals whose symptoms are solely explained by substance use)
• Providing a list of factors a magistrate may consider when making their decision

Why does this reform need evaluation?

Lawmakers said the reforms would make court processes more efficient, offer clearer guidance, and help ensure that people with mental illnesses or cognitive impairments receive the treatment they need. Increasing the limit from six months to twelve months is hypothesised to encourage magistrates to divert more individuals (and the six-month limit under the old Act has been an issue reported by magistrates in the past).

Additionally, it has been suggested that providing a clear definition of ‘mental health impairment’ would make the system easier to navigate for many actors involved in the diversion process, including legal practitioners, clinicians and defendants.

Critically, no evaluation of these law reforms has been undertaken so far, and thus the impact on diversion in NSW Local Courts is unknown. In fact, research on mental health court diversion is a relatively under-explored area within all Australian jurisdictions, despite the overrepresentation of mental illness within the criminal justice system. Additionally, legal practitioners working within the system in New South Wales have only been surveyed twice before (most recently by NDARC researchers).

Our current project will fill an important gap by understanding how the legislative reforms have impacted the day-to-day work of lawyers working on court diversion cases and outcomes for their clients, as well as clinicians completing assessments that are provided to the courts.

Why this evaluation matters now

Past research has shown that court diversion in the NSW Local Court is effective in reducing reoffending; however, the literature suggests that diversion rates in the NSW Local Court are low, and in 2016, only 1.4% of criminal charges in the Local Court were diverted under the old legislation. That’s why it’s important to assess whether the new law is doing what it is meant to do – helping people get into treatment – and to see if any parts of the process could work better.

And that’s exactly what my colleagues and I have been tasked with, as part of new funding from Australian Institute of Criminology’s Criminology Research Fund – to evaluate the impact of the recent law reforms. The team, including researchers from NDARC and the Justice Health and Forensic Mental Health Network, will be using a mixed-methods approach to evaluate the impact of the recent law reforms to answer the following key questions:

• Has court processing time improved under the new Act?
• Have diversion rates increased compared with the previous scheme?
• How do clinicians and lawyers - who work directly with the Act but are rarely included in research - view its operation in practice?

As part of the project, we will conduct qualitative interviews with clinicians and lawyers who work directly with the Act, as well as a quantitative analysis of linked data from the Bureau of Crime Statistics and Research (BOCSAR) Reoffending Database. This combination of methods will allow the team to build a comprehensive picture of how the reforms are working in practice.

Our aim is to finalise the project by mid-2027, and we hope to contribute to improving diversion and treatment access in this vulnerable population.