Unwell, Unconvicted and Uncooperative:Should Forensic Patients be Required to Engage with Mental Health Experts to Secure their Release from Custody?

This article examines whether forensic patients — individuals found not guilty of criminal acts by reason of mental impairment — can be required to engage with mental health experts to secure their release from custodial supervision. Centred on the High Court of Australia’s decision in KMD v CEO (Department of Health NT), the paper explores the tension between protecting public safety and the patient's rights to liberty and autonomy. It critiques making non-cooperation with psychiatric assessments a de facto barrier to release, arguing this approach unfairly reverses the onus of proof and undermines the presumption of liberty. The article contends that while a patient's refusal to be assessed is a relevant factor in determining risk, it should not be determinative. It advocates for a rights-based framework where restrictions on liberty must be proven necessary and proportionate, based on a holistic evaluation of all available evidence, rather than making freedom contingent on procedural compliance.