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Chapter 6 Section E : Mental Illness, prisons and forensic facilities

If you are a prisoner you are entitled to the same standard of health care as people who are not prisoners, and those who are forensic patients in the community.

In reality, while the standard of health care NSW prisoners receive varies like any other public health services in NSW, the access to health care is often limited because it is delivered in a prison or forensic setting. On the other hand, some prisoners may receive services, such as dental and health care, that they have never had real access to in the community because of associated costs and social reasons.

Forensic patients in a forensic facility receive physical and mental health care similar to that they would receive in an acute or sub-acute mental health facility. Some medium or low security forensic units can provide access to a greater diversity of treatment programs, such as group psycho-education programs, than they might have in an acute mental health facility. Usually, treatment related to a forensic patient’s mental illness is provided on a compulsory basis. With some exceptions, other medical and dental treatment is provided on a voluntary basis; that is, the patient must consent to this treatment.

Prisoners and forensic patients in forensic facilities, unlike others in the community, cannot access a general practitioner (GP) of their choice and cannot access public or private health services in the community.

This section of the Manual has information about:

  • Access to health care in prisons and forensic facilities
  • Access to mental health services in prisons
  • Pathways through the forensic system
  • Complaints about health care in NSW prisons and forensic facilities
  • Urine testing and other drug testing
  • International human rights law standards

6E.1: Access to health care in NSW prisons and forensic facilities

When you are in prison, you have a right to receive health care, dental treatment and mental health care. Each prison has a clinic staffed by a registered nurse who works for Justice and Forensic Mental Health Network (the Network), which is a part of the health system that provides health services to people in the NSW criminal justice and forensic mental health system.

The clinic is open each day and the nurse should be able to help you with most health problems, give you your medication and, when needed, refer you to other health care professionals such as the doctor, dentist or optometrist. You can also be referred to other medical specialists, but this referral must be provided by a visiting GP.

While in custody, you may also request to go to the Health Centre at any time to have a health problem assessed and treated. In most centres you must complete a Patient Self-Referral form which can be found in the wings/pods or the Health Centre. You should place the completed referral form in the locked box in your wing/pod or at the Health Centre. Nurses will look at these referrals and organise an appointment depending on the urgency of your health problem.

If your health issues are urgent you should advise a Corrective Services officer and go immediately to the Health Centre. You do not require a Patient Self-Referral form. In an emergency you can contact Corrective Services NSW using the buzzer in your cell.

The Justice and Forensic Mental Health Network is the only provider of health care in NSW prisons (except at Junee and Parklea Correctional Centres). Justice Health contracts out the provision of some health services (mainly to GPs visiting prisons).

Medicare doesn’t pay for health services for prisoners.

Justice Health and Corrective Services NSW do not stop outside health professionals visiting prisoners. However, there is no obligation on Justice Health to change treatment and/or medication, even if a doctor from outside the prison medical system disagrees with the treatment you are receiving in prison.

It is likely to be difficult to persuade a health care professional, particularly if they haven’t seen the person before, to see a prisoner. With no Medicare available, the prisoner wanting the visit or the person arranging the visit will usually have to pay the full fee for such a visit.

Usually access to the visiting GP is ‘triaged’. That means the prisoners that the nurses assess as having the most urgent and serious health problems will see the doctor first. This can often mean long delays in seeing the doctor if you have a less urgent problem. Therefore, if your condition worsens, you should tell the clinic as soon as possible.

Justice Health has produced a brochure outlining arrangements for health and dental care in NSW prisons. You can find this brochure by following this link.

6E.1.1: Mental health care in NSW prisons and forensic facilities

Justice and Forensic Mental Health Network (the Network) delivers custodial and forensic mental health services across correctional, community and inpatient settings.

Justice and Forensic Mental Health Network operates the following forensic mental health services:

  • The Forensic Hospital, Malabar: a high secure, 135 bed, mental health facility for male, female, adult and adolescent forensic and correctional patients and a limited number of high-risk civil patients;
  • Long Bay Hospital: an 85 bed, health facility inside Long Bay Correctional Centre, which contains a 40 bed Mental Health Unit for adult correctional patients;
  • State-wide Community and Court Liaison Service: which operates in 21 Local Courts across metropolitan and regional NSW;
  • Adolescent Community and Court Team: which operates in the Children’s Court.
  • Community Integration Team: which provides assessment, referral, support, and treatment services to young people in the community;
  • Community Forensic Mental Health Service: – for adult forensic patients in the community;
  • Silverwater Correctional Complex (Mental Health Screening Units in Sydney): 40 beds for males and 10 beds for females; and
  • Ambulatory mental health services within correctional and detention centres.

The Network works closely with Local Health Districts (LHDs) to provide a range of integrated services to divert people away from custody and into community-based care, where appropriate, and to ensure continuity of care for patients transitioning back into the community. Medium secure mental health facilities in LHDs include:

  • Macquarie Unit, Bloomfield Hospital, operated by Western NSW LHD (20 beds),
  • Bunya Unit, Cumberland Hospital, operated by Western Sydney LHD (24 Beds);
  • Kestrel Unit, Morisset Hospital, operated by Hunter New England LHD (30 beds); and
  • Kirkbride Unit, Concord Hospital, operated by Sydney LHD (15 beds).

In total, the Network provides healthcare in 42 Correctional Centres and 1 Transit Centre in NSW.

Forensic mental health services provide assessment, care and other services to people with mental illness who are, or have been, in contact with the criminal justice system. The provision of health care services is for forensic and correctional patients, and for civil patients who are a high risk of harm to others.

Forensic mental health services are underpinned by the same principles that underpin general mental health services with the addition of specific principles, legislation and processes that are applicable to forensic and correctional patients, including the Mental Health (Forensic Provisions) Act 1990 (NSW). The general principles include those such as the Charter for Mental Health Services in NSW. Forensic mental health services in NSW aim to adhere to the National Statement of Principles for Forensic Mental Health.

Many, but not all Justice Health clinics, have a mental health nurse. Psychiatrists also visit the clinics. You will be expected to talk to a Mental Health Nurse, if available, before you see a psychiatrist.

6E.1.2: Pathways through the forensic system

6E.1.2.1: Forensic patients found not guilty of mental illness

If the Court finds someone not guilty by reason of mental illness, the Court may order the person’s detention in a correctional centre, hospital or some other place, or be released either with conditions or unconditionally.

For clients who are detained, this will normally be within one of the mental health units at the Metropolitan Reception and Remand Centre at Silverwater Correctional Complex or at Long Bay Hospital. Many of these people would have already spent time in custody while on remand.

The typical pathway for forensic patients detained in a correctional centre is that they will be transferred to the Forensic Hospital at Malabar or to one of three medium-security forensic units at Cumberland, Morisset and Bloomfield Hospitals. These facilities may have a range of health professionals such as forensic psychiatrists, occupational therapists, psychologists, social workers and mental health nurses.

A forensic patient can be transferred to a less restrictive setting if the Mental Health Review Tribunal makes an order for them to be transferred. Forensic patients often go through a gradual and slow process of rehabilitation, over several years, as they move through this forensic health system.

6E.1.2.2: Forensic patients on a limiting term

At the end of a special hearing, the Court will decide if on the limited evidence available that the accused has committed the offences as charged. The Court will then decide whether to impose a limiting term. Limiting terms are designed to reflect the best estimate of the sentence the Court would have imposed in the event the person had been found guilty.

Some forensic patients in this situation may experience an intellectual disability or a cognitive impairment. Unfortunately, there is no specific pathway through the forensic system for forensic patients with a cognitive impairment or intellectual disability who do not also have a serious mental illness. Normally such forensic patients will serve all of their limiting term in a correctional centre.

For those who have dementia-related illnesses, they can be placed at the Kevin Waller Unit at Metropolitan Special Programs Centre or in the Aged Care Rehabilitation Unit in Long Bay Hospital. It is possible for forensic patients serving a limiting term to be conditionally released from custody during the duration of their limiting term, however this can only occur where the Mental Health Review Tribunal is satisfied that the person has spent sufficient time in custody.

6E.1.3: Dental treatment in NSW prisons and forensic facilities

If you have problems with your teeth, call the Oral Health Hotline on the Common Auto Dial List 04#. This line is very busy so you may have to keep trying. An appointment with a dentist will be arranged but you may have to wait. This depends on the seriousness of your problem.

6E.1.4: Emergency medical treatment

If an inmate needs emergency assessment, medical or surgical treatment is a medical emergency, clinical staff of the Network should notify the Governor of Corrective Services NSW as soon as possible, and a transfer to the nearest appropriate general public hospital will happen immediately.

Any emergency referral decisions should be made by the responsible nurse when available on site or contacted by telephone, or the responsible NSW Correctional Officer if the nurse is not available on site or contactable on the telephone.

6E.1.5: Surgical treatment under the Mental Health Act 2007 (NSW)

If a correctional patient or forensic patient is capable of, and willing to, consent to surgical treatment they are able to do so despite their ‘involuntary’ status under the Mental Health Act 2007 (NSW) or Mental Health (Forensic Provisions) Act 1990 (NSW). No other consent authority is required.

Generally speaking, the Guardianship Act 1987 (NSW) applies to all non-mental health related treatment that may be required by a correctional patient or forensic patient who is unable or unwilling to consent to that treatment.

However, there are special rules under the Mental Health Act 2007 (NSW) for consent to surgical treatment for physical conditions that apply to correctional and forensic patients who are unable to consent to surgical treatment or who refuse that consent. Note that these rules do not apply in the case of an ‘assessable person’ – a person detained in a Mental Health Facility before a Mental Health Inquiry is conducted. If an assessable person cannot or will not consent to necessary surgical and other medical treatment (other than mental health treatment) the Guardianship Act 1987 (NSW) applies.

If a correctional or forensic patient requires emergency surgery, and the patient is unable or refuses to consent to the surgery, then an Authorised Medical Officer or the Director-General of NSW Health can consent to the surgery. Before giving such consent the Authorised Medical Officer or Director General must be satisfied that it is necessary for the surgery to be performed urgently to save the patient’s life or to prevent serious damage to the patient’s health or to prevent the patient from suffering significant pain or distress.

If the correctional or forensic patient is not mentally ill, the Authorised Medical Officer or Director-General can only consent to emergency surgery if the patient is incapable of giving consent to the surgery. The Authorised Medical Officer or Director General cannot consent to emergency surgery on a correctional or forensic patient who is not mentally ill who is capable of consenting to surgery and who has refused that consent.

If you are a mentally ill correctional or forensic patient, and you require a non-emergency surgical procedure, but are incapable of consenting to that procedure, or if you have refused that consent, consent to the surgery may be obtained from the Director General of NSW Health or the Mental Health Review Tribunal. If your primary carer agrees the surgery should be performed, the Director General can consent to the surgery. If you do not have a primary carer, or your primary carer does not agree with the proposed surgery, only the Mental Health Review Tribunal can consent to the surgery.

In either case, before the Director General or Mental Health Review Tribunal can consent they must be satisfied that it is in your best interests that the surgery is performed.

If the correctional or forensic patient is not mentally ill, the Director-General and Mental Health Review Tribunal can only consent to non-emergency surgery if the patient is incapable of giving consent to the surgery. The Director General and Mental Health Review Tribunal cannot consent to non-emergency surgery on a correctional or forensic patient who is not mentally ill who is capable of consenting to surgery and who has refused that consent.

There are additional rules for consent to what is called ‘special medical treatment’ under the Mental Health Act 2007 (note this is different from ‘special treatment ‘under the Guardianship Act 1987 (NSW).

Special medical treatment is defined as ‘any treatment, procedure, operation or examination that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out’.

If a correctional or forensic patient requires special medical treatment, only the Mental Health Review Tribunal can consent to this treatment (even if the person is capable of consenting to other medical treatment themselves). Before it can authorise special medical treatment, the Mental Health Review Tribunal has to be satisfied:

  • that the treatment is necessary to prevent serious damage to the health of the patient;
  • that the treatment is the only or the most appropriate way of treating the patient; and
  • that the treatment is obviously in the best interests of the patient.

If you want to refuse to have surgery, and you are a correctional or forensic patient, it is strongly suggested that you get legal advice as early as possible. The Mental Health Act 2007 (NSW) allows for urgent hearings of the Mental Health Review Tribunal in these circumstances, and you are likely to need some time to get together evidence before the hearing. You are unlikely to be granted legal aid for this sort of Tribunal matter. To find out more about getting legal advice, click here.

6E.2: Complaints about health care in NSW prisons and forensic facilities

If you are a prisoner or forensic patient in NSW, any complaints you have about the standard and quality of health care provided to you should be made either to:

  • Justice Health ; or
  • the Health Care Complaints Commission (HCCC).

If your complaint is about access to health care you could complain directly to:

  • Justice Health; or
  • the NSW Ombudsman.

To find out which body it is best to complain to, click here.

Complaints about conditions and treatment in prison or forensic facilities can also be made to an Official Visitor. For more about the Official Visitor, click here.

6E.2.1: Complaining to Justice Health

The first thing to do if you are unhappy about your health care in prison is to ask to speak to the nurse in charge of the clinic at the prison.

You can call Justice Health directly by dialling #05 on the Common Auto Dial List. Justice Health can confirm whether you have been placed on a list for medical services. They can also respond to complaints directly.

If you still aren’t happy, then you could write a letter outlining your concerns to:

Chief Executive
Justice Health
PO Box 150
MATRAVILLE NSW 2036

6E.2.2: Complaining to Health Care Complaints Commission

Formal complaints can take a long time to be resolved. You could try talking to an Inquiry Officer at the Health Care Complaints Commission (HCCC) by dialling #17 on the Common Auto Dial List. Sometimes Inquiry Officers at the HCCC can contact Justice Health and help to sort things out more quickly.

If you still aren’t satisfied, then you can complain to the HCCC. Your complaint must be in writing, so you can either use the HCCC complaints form, or write a letter to the HCCC.

Your written complaint should include information about:

  • names of people involved
  • what happened, and when it happened
  • your specific concern
  • what you have done already to raise your concerns; and
  • what would you like to happen.

Health Care Complaints Commission
Locked Mail Bag 18
STRAWBERRY HILLS NSW 2012

If you need help with writing down the complaint, contact an HCCC Inquiry Officer by dialling #17 on the Common Auto Dial List. The Inquiry Officer can write a letter of complaint for you to sign if there is some reason that you can’t write it on your own.

If your complaint is about the treatment and care received from a visiting GP or psychiatrist, including about diagnosis or medication prescribed, you should make it clear your complaint is about this. Visiting doctors and staff psychiatrists are likely to talk to Justice Health staff about your medical history. However, decisions about whether you are referred to a specialist or prescribed a specific medication are ultimately decisions made by the doctor, not the nursing staff employed by Justice Health. Justice Health nurses cannot prescribe medication.

6E.2.3: Complaining to the NSW Ombudsman

If you are having trouble getting to see medical staff, or you think it has been too long for you to get an appointment with a specialist doctor, the NSW Ombudsman’s office might be able to help. If your complaint is about the quality of care, or the actual medical treatment you have received, the Ombudsman won’t usually get involved. You can call the NSW Ombudsman on the Common Auto Dial List 08#.

Your complaint to the NSW Ombudsman should include:

  • your name and signature
  • your address and contact details
  • the date of your letter
  • what your complaint is about and relevant evidence
  • if police are involved, ID number of the officers
  • what you have done already to raise your concerns; and
  • what would you like to see happen.

The NSW Ombudsman’s address is:
NSW Ombudsman
Level 24, 580 George Street
SYDNEY NSW 2000

If you are not sure whether to contact the HCCC or the Ombudsman read on to the next section to find out more.

6E.2.4: Should you contact the Health Care Complaints Commission or the Ombudsman?

The HCCC cannot deal with complaints about general prison issues. It can deal with complaints about health care services provided to prisoners and forensic patients. For example, complaints about the quality of food provided, or concerns about hygiene issues around the preparation of food should be made to an Official Visitor or the NSW Ombudsman. Sometimes prisoners can’t get their medications on time because of lock-downs (times when prisoners have to remain in their cells). Complaints about this happening should be made to the NSW Ombudsman.

The NSW Ombudsman also deals with complaints about access to health services, not the standard and quality of treatment and care.

If you are a patient at the Forensic Hospital at Long Bay, you should note that this Hospital is managed by Justice Health and not Corrective Services NSW. If you have a complaint about the standard of health care at the Forensic Hospital at Long Bay, the HCCC can deal with your complaint. If you have a complaint about other matters not to do with the health care or treatment you receive, then the NSW Ombudsman is be the best place to complain.

If you are mistreated by a health professional (either physically, emotionally or through unwanted sexual conduct), then you should complain to the HCCC.

6E.3: The Official Visitor

If you have concerns about conditions or how you are treated in prison or a forensic facility, you can ask to see an Official Visitor. An Official Visitor will usually visit your prison or forensic facility at least once every two weeks. The Official Visitors are appointed by the Minister for Corrective Services and they are usually experienced clinical and community representatives. They are independent of Corrective Services NSW. They will try to fix your problem by speaking with senior prison staff.

There is a separate Official Visitors Scheme for NSW public mental health facilities. This scheme visits the Forensic Hospital at Long Bay and other hospitals for forensic patients, such as Morisset and Cumberland Hospitals.

6E.4: Urine testing and other drug testing

If you are a forensic patient and you are granted leave, the Mental Health Review Tribunal can set conditions on your leave about the use or non-use of alcohol and other drugs, and can order drug testing and other medical tests to check that you have followed these conditions. This usually means you will have to have urine tests after periods of leave as well as having tests while in prison or hospital.

If you are a NSW prisoner serving a sentence or are on remand, you can be required to have a breathalyser test or a urine test if a prison officer has a reasonable suspicion that you have used drugs or alcohol in prison.

A prison officer above the rank of Assistant Superintendent can require a prisoner to have a urine test at any time. That is, they don’t need to have a ‘reasonable suspicion’ to make you have a urine test.

6E.5: International human rights standards

United Nations human rights instruments (e.g. covenants, treaties, protocols) state that all individuals have the right to access health care for their needs, regardless of their legal status. This is called the ‘principle of equivalence’, and this principle is recognised in the following instruments:

  • the Standard Minimum Rules for the Treatment of Principles (or the Mandela Rules) (United Nations General Assembly, 2015);
  • Principles for the Protection of Persons with Mental Illness and Improvement of Mental Health Care (1991); and
  • the Convention on the Rights of Persons with Disabilities.

The Mandela Rules requires the transfer of prisoners out of prison as soon as possible if they need involuntary treatment to make sure that they receive appropriate care, especially if staying in prison would make their condition worse.

The World Health Organisations supports this rule. The World Health Organisation has also stated that prisons are rarely able to treat and care for seriously and acutely mental ill prisoners.

Australia has an obligation to make sure that prisoners suffering from mental illness can access the same quality of service or treatment as the general population.

Updated February 4, 2021