He killed two people. But he's not guilty.

There were two stabbings.

Antony Waterlow was convinced his family were out to bring him down. In his disturbed mind, they were driving him to commit suicide. He fought these feelings for years and, in the end, he snapped and killed his father Nick and his sister Chloe Heuston.

We covered this distressing story on Mamamia at the time. Many people we knew were close to Chloe and Nick. Chloe and her husband Ben (who was in London visiting family at the time of the murders) had three children, the youngest of whom was only 4 months old and breastfeeding when his mother was killed. Waterlow also stabbed a child who cannot be identified for legal reasons.

It’s almost impossible to imagine a more horrific crime. Let’s not try.

Anthony Waterlow has suffered from schizophrenia for years and yesterday the New South Wales Supreme Court acquitted him of the charges on the grounds that he was mentally ill. The case was heard in the absence of a jury.

He was found Not Guilty.

Now the talk turns, as it invariably does with tragedies of this magnitude, to how the system failed. What should have been done to prevent this? Shouldn’t he have been scheduled?

What is scheduling?

Family friend Jane Campion argued for a review of the law in New South Wales that allows mentally ill people to be scheduled, or admitted into mental health facilities without their consent. The aim, of course, is to protect those around them.

Jane spoke to the Sydney Morning Herald:

“This case shows that Nick and Chloe tried really, really hard … everything that was available, but they died because Anthony could not be scheduled, not until he had done something really terrible,” she said.

“I just think this case talks to the heart of the facts that there is a real gap in the system, in my view, that Nick and Chloe died because there was no protection from mental health services or the police.”

Mamamia spoke with Barbara Hocking, the Executive Director of SANE Australia, about the handling of mental health patients in the criminal justice system and why there needs to be more support.

“The kind of treatment being argued for in the case of Antony Waterlow is not a fantasy fix,” she said.

“Scheduling is important because it gets the mentally ill to a treatment centre and that treatment, such as medication and therapy, can be hugely beneficial. Sadly, had that treatment been available to Antony beforehand he may never have committed the acts he did.

“The whole situation is tragic. There are no winners in this. At all.”

So what went wrong with the scheduling laws?

Mental illness, when proven by credible experts, is a legitimate defence in the criminal justice system. The Mental Health Act (1990) in New South Wales allows for scheduling where a person’s ‘behaviour is so irrational that they place themselves or someone else at risk of serious physical harm’.

The problem, in this case and others, is how much it takes for someone to get the help they need before they do the unthinkable.

In New South Wales, admission under ‘section’ orders to an institution against a person’s will usually only occur after they have seen a doctor of their own will.

As Barbara Hocking says, how many sufferers of advanced schizophrenia are going to consult their doctor? Some, like Waterlow, already believe the world is out to get them. Usually the last resort is when they do something violent or harmful…to themselves or someone else. But by then it can all be too late.

Scheduling laws (in Victoria they are called Compulsory Treatment Orders) are a means to an end. They don’t treat mental illness, but they do force that treatment on others.

“There are circumstances where people do not acknowledge, or cannot acknowledge, that they are unwell,” she said.

“Mental illness is so complex and, of course, it is when somebody is so acutely unwell that they are least likely to seek proper help through doctors and treatment centres.”

The problem with scheduling is that, in NSW, the orders last for three months tops though usually only for a few days.

Then the person is free again. They may get better. They may not.

A notable feature of  the Waterlow case is that Antony (also spelled Anthony) has been receiving the treatment needed for Schizophrenia in custody and that his symptoms have lessoned dramatically. During the trial, he spoke of the heightened awareness of what he had done. According to the Sydney Morning Herald:

“This is a good thing but it’s also a terrible thing, because it makes me aware of the awful realities of what I have done,” Mr Waterlow said.

”Never in my wildest dreams did I think I would kill Chloe and dad, but I did.

”I am terribly shattered by what I have done. I miss my family incredibly. I’m so, so sorry and I will be for the rest of my life.”

So what happens when you’re acquitted of murder (or other serious crimes) by reason of mental illness?

That’s another contentious part. It’s slightly different from state to state in the technicalities but the person then becomes what is known as a ‘forensic patient’ – as Barbara explains. “The patient will go into forensic care in an, ideally, secure facility,” she said.

“In Victoria these are secure medical facilities but my understanding is that in New South Wales these are justice facilities. With time and treatment and monitoring, and should they demonstrate improvements, they can be released again.”

Or, in the case of Gold Coast killer Claude Gabriel, escape is sometimes an option.

Claude was in forensic care following the stabbing death of a Gold Coast child care worker in 1998 – in a crime of stunning ferocity – but escaped to Victoria before being apprehended again in 2002.

Barbara is clear, however, on putting these extreme crimes into context.

“The vast majority of the mentally ill represent no danger, and where they do, it is usually toward themselves in the form of suicide,” she said.

“There have been situations where those who are suffering have gone and sought help and been turned away in circumstances that have led to their own death.

“Mental health in this country is not funded nor resourced well enough to provide the care that patients need and that is where the failure lies.

“We don’t want to go back to the days of mental institutions but checks and balances are needed, and they need to be funded properly.”

Have we failed the mentally ill? How do we protect those who are ill…and protect everyone else at the same time? And what of the mental illness defence? If someone who has committed a crime as serious as murder is found not guilty by reason of insanity, should they be released a few years later if they can get their illness under some semblance of control?

If you or someone you know is suffering from mental illness, seek help. There are a range of services to call. Check out BeyondBlue and SANE Australia for information and hotlines.