Impact of Mental Health Court Diversion on Reoffending

Impact of Mental Health Court Diversion on Reoffending: A Direct Comparison of Diverted and Undiverted Groups 

Yin-Lan Soon; Discipline of Psychiatry and Mental Health, University of New South Wales (UNSW), Sydney, Australia; Justice Health and Forensic Mental Health Network, Sydney, Australia

Sara Singh; Discipline of Psychiatry and Mental Health, University of New South Wales (UNSW), Sydney, Australia

David Greenberg; Discipline of Psychiatry and Mental Health, University of New South Wales (UNSW), Sydney, Australia; Justice Health and Forensic Mental Health Network, Sydney, Australia

Natasha Rae; Justice Health and Forensic Mental Health Network, Sydney, Australia

Daria Korobanova; Discipline of Psychiatry and Mental Health, University of New South Wales (UNSW), Sydney, Australia

Carolynn Dixon; Justice Health and Forensic Mental Health Network, Sydney, Australia

Kimberlie Dean; Discipline of Psychiatry and Mental Health, University of New South Wales (UNSW), Sydney, Australia; Justice Health and Forensic Mental Health Network, Sydney, Australia

Mental health court diversionary programs are a key strategy to address over-representation of individuals with a mental illness in the criminal justice system. The study examined 2,476 individuals identified as eligible for mental health court diversion by the Statewide Community and Court Liaison Service (SCCLS) in New South Wales (NSW), Australia and compared reoffending of those granted and not granted court diversion. Individuals not diverted had 43% higher reoffending rate than those granted diversion. Predictors of non-diversion and reoffending included younger age, being male, Aboriginal and/or Torres Strait Islander background, primary personality and/or substance use diagnosis and non-violent offence charges

Court diversion; criminal charge; court; mentally ill 

“In Australia and internationally, individuals with mental illness are over-represented amongst those in contact with the criminal justice system; they are more likely to experience repeated interactions with courts, contact with the custodial system, and are at greater risk of repeated incarcerations compared to those without a mental illness. In response, many jurisdictions have adopted court-based mental health diversionary programs, such as mental health courts and/or court liaison and diversionary services designed to assist courts with applying the principles of therapeutic jurisprudence, and to link individuals to hospital or community psychiatric care. By doing so, court diversion aims to address the underlying causes of criminal behavior associated with mental illness rather than apply a punitive approach… The aim of the current study is to directly examine the impact of mental health court diversion on reoffending by comparing reoffending rates amongst those granted and not granted diversion, within a cohort of individuals assessed by mental health clinicians as being eligible for court diversion” (p. 484-485). 

“The study cohort was derived from the dataset compiled by the NSW SCCLS and completed by team clinicians (i.e., mental health clinical nurse consultants) based at each of the 22 NSW local courts covered by the service. The SCCLS clinicians prepare reports for the court following the assessment of people referred to the service. The reports provide detail on whether an individual is eligible for court diversion based on the presence of symptoms such as delusions, hallucinations and/or severe mood disturbance, and make recommendations to the court on the appropriate mental health services and treatment ordinarily available in the community… The cohort includes all individuals aged 18 years and over seen by the SCCLS between 1 July 2008 and 30 June 2015 and assessed by SCCLS clinicians as eligible for any type of mental health court diversion” (p. 486).

“In this study of people with mental illness presenting to local court in NSW and determined to be eligible for diversion, those actually diverted from the justice system to mental health services had a significantly lower rate of subsequent reoffending compared to those who were not diverted. Individuals not granted court diversion had a rate of reoffending for any offense that was 43% higher than those granted court diversion  and the association persisted after controlling for a range of key covariates. We also found court diversion to be associated with reduced time to violent recidivism, but the association was not significant on multivariable analysis, indicating that the impact on violent reoffending was at least in part due to the higher risk status of the non-diverted group rather than the direct impact of diversion” (p. 492-493).

“In the current study, 1,661 (67%) were granted court diversion despite 2,476 individuals being identified by NSW SCCLS mental health clinicians as eligible for court diversion under sections 32 (community-based diversion) and 33 (inpatient-based diversion) of the relevant NSW legislation (MHFPA). There were significant differences between individuals granted and not granted diversion by magistrates with regard to their socio-demographic and clinical characteristics. Individuals had increased likelihood of court diversion if they were aged over 40 years, female, of non-Aboriginal and/or Torres Strait Islander background, had a primary diagnosis of a common mental health disorder (e.g., depression), were charged with a violent index offense, had legal representation, or lived in an inner regional area” (p. 495). 

“Amongst those with mental illness eligible for court diversion, the granting of court diversion was associated with a significantly lower time to recidivism. This pattern of reduced reoffending for individuals granted mental health diversion extended across the discrete follow-up periods examined (30 days to 36 months) and across different types of reoffenses including violent, nonviolent, and minor offenses. There was, however, little apparent difference in the proportions found across different types of reoffenses between the court diverted and non-diverted groups, limiting the extent to which these findings are meaningful in practice" (p. 495). 

Reduce Recidivism Through Diversion: Mental health court diversion programs significantly reduce reoffending rates. Diverted individuals had a 43% lower rate of reoffending compared to those not diverted, even when controlling for demographic and clinical variables. This underscores the effectiveness of therapeutic rather than punitive responses for individuals with mental illness.

Address Barriers to Diversion Access: Certain groups face inequities in access to diversion. Individuals who were male, under 40, Aboriginal and/or Torres Strait Islander, or had a personality/substance use disorder were less likely to be granted diversion despite being eligible. Interventions should focus on improving equitable access for marginalized populations.

Target High-Risk Groups Early: Focus diversion efforts on groups at highest risk for reoffending. The same characteristics that predicted being undiverted also predicted reoffending: younger age, male gender, Indigenous identity, and nonviolent offenses. Prioritizing early intervention and support for these populations may help reduce justice involvement.

“The current study benefits from enabling a direct comparison between diverted individuals and an undiverted control group also deemed eligible for diversion which, in the absence of the ability to conduct randomized controlled trials in the field, adds robust evidence to the literature supporting the notion that mental health diversion at court can reduce reoffending. It also benefits from including data from both a comprehensive clinical service database and official criminal records, reducing the likelihood of sampling and information biases, as well as enabling examination of a wide range of covariates. There are, however, several potential limitations arising from the nature of the data sources. Firstly, the information available in the study is limited to information routinely recorded by SCCLS clinicians and available in the BOCSAR ROD, resulting in the possibility of misclassification errors and an absence of information on several potential factors of interest (e.g., individual-level socioeconomic status, and reoffending outside the NSW jurisdiction). Secondly, the study is limited to an examination of the first stage in the diversion process (i.e., the legal granting of diversion by a magistrate), while the nature and outcome of the mental health treatment received by individuals following diversion is unknown. In addition, there is no specific information available on the factors that contribute to a Magistrates’ decision about mental health diversion. While the study sample size was relatively large compared to other research in the field, the power to examine associations between diversion and violent reoffending may have been insufficient. Furthermore, the study was unable to censor for deaths that occurred during the study follow-up period. Finally, it is difficult to generalize the findings of this study to other jurisdictions with different legislative, judicial, and healthcare contexts” (p. 496).