10 Improving the supervision, review and leave frameworks in the higher courts

Introduction

  1. 10.1 The terms of reference ask the Commission to consider whether changes should be made to the provisions governing supervision and review in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘CMIA’), including the frequency, form and conduct of reviews.
  2. 10.2 This chapter focuses on topics raised in the Commission’s Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: consultation paper (‘the consultation paper’) concerning the supervision, review and leave framework under the CMIA, in particular:
  • the model of decision making underpinning supervision and review
  • improvements to decision making by the court, Forensic Leave Panel and people responsible for supervision
  • the operation of indefinite supervision orders and ‘nominal terms’
  • specific procedural improvements to the legislative framework for the making of supervision orders, including processes for the review and leave of supervised people.
  1. 10.3 The Commission’s recommendations aim to ensure that, where it can be done safely, the level of supervision and restriction on the liberty of people subject to supervision orders is reduced. The implementation of a refined supervision, review and leave framework will ensure that this occurs in appropriate circumstances. The Commission concludes:
  • Transparency and accountability are key principles that run through the CMIA. CMIA processes should promote procedural fairness and open and transparent decision making. The Commission recommends a new framework for the review of supervision orders to improve clarity and understanding of the law. The Commission also
    makes recommendations to improve clarity and transparency in the communication
    of reasons by the Forensic Leave Panel and for a review of the Internal Leave
    Review Committee.

 

  • The duration of supervision should be proportionate to the risk the supervised person poses.1 Supervision should occur only if it is necessary to address the actual risk posed by the person to the community and continue only for so long as it is necessary to achieve that aim. The Commission’s recommendations ensure that significant reviews of orders are linked to the actual decrease or increase in the risk posed by the person and any improvements or decline in the person’s progress or recovery, rather than to a term connected to the seriousness of the offence. The recommendations also aim to make the CMIA more consistent with modern principles of risk assessment and identify more precisely the points at which restrictions on a supervised person can
    be reduced in a way consistent with the safety of the community.
  • The nature of the supervision and the restrictions attached to the supervision order should be the minimum necessary to accomplish the goal of addressing the supervised person’s risk to community safety.2 Where possible, less restrictive conditions or alternatives should be considered.
  • The fundamental justification for the imposition of CMIA orders is the protection of the community. Where a person no longer poses an unacceptable risk to the community, the justification for CMIA intervention ceases to exist. The Commission therefore recommends that people subject to the CMIA should not be supervised under this system when they only pose a risk to themselves.
  • Decisions under the CMIA on the level of supervision or leave entitlements should reflect the recovery or the progress of a person and their risk to the community. A lack of information, for example, should not stall a supervised person’s progress through the system. The Commission therefore makes recommendations to ensure continuity in decision making between the court and the Forensic Leave Panel and within the Forensic Leave Panel itself.
  1. 10.4 The overall aim of the Commission’s recommendations is to address the areas where a mismatch has been identified in the current operation of the CMIA between the level of supervision required for a person subject to the CMIA and the supervision they actually receive. The recommendations are targeted at reducing false positives (people who are legally seen to be an unacceptable risk but who are not in actuality) while not increasing false negatives (people who are not deemed an unacceptable risk legally but will be
    when released).3

The current supervision, review and leave framework under the CMIA

  1. 10.5 The CMIA introduced a new system to govern the supervision of people found not guilty because of mental impairment4 or found to have committed the offence after being found unfit to stand trial.5 It introduced a power for the court to impose supervision orders and established a new framework for reviewing supervision orders and granting leave to people subject to supervision.

Supervision orders

  1. 10.6 Following a finding under the CMIA, the court can unconditionally release the person or declare the person liable to supervision and then make a custodial supervision order or non-custodial supervision order. A supervision order is for an indefinite term. A ‘nominal term’ for the supervision order must be set by the court, which prescribes the minimum time before a ‘major review’ of the order must occur. These are discussed later in this chapter at [10.115]–[10.125].
  2. 10.7 A person with a mental illness subject to a supervision order is supervised by an ‘approved mental health service’ under the Department of Health. In all but exceptional circumstances, the Victorian Institute of Forensic Mental Health (Forensicare) is the ‘approved mental health service’ that supervises people with a mental illness. Different arrangements apply depending on whether the person with a mental illness is on a custodial supervision order or a non-custodial supervision order:
  • A person subject to a custodial supervision order (‘forensic patient’) is detained and supervised at the Thomas Embling Hospital, Forensicare’s secure hospital. Forensicare will nominate an authorised psychiatrist at Forensicare to manage the forensic patient and their treatment.
  • People subject to non-custodial supervision orders or forensic patients who are on extended leave are supervised in the community by Forensicare through its Community Forensic Mental Health Service. Forensicare will nominate an authorised psychiatrist from Forensicare or a local approved mental health service to manage and treat the person, sometimes in collaboration with a private psychiatrist.
  1. 10.8 A person with an intellectual disability or other cognitive impairment subject to a supervision order is both supervised by and receives treatment from agencies in the Department of Human Services. Different arrangements apply depending on whether the person is subject to a custodial supervision order or a non-custodial supervision order.
  • Within Disability Services, the Disability Forensic Assessment and Treatment Services manage and provide treatment to a person subject to a custodial supervision order (‘forensic resident’). Forensic residents can be detained in either a residential treatment facility or a residential institution.
  • A person subject to a non-custodial supervision order is managed by and receives treatment in the community from Disability Services, part of the Department of Human Services.

Review of supervision orders

  1. 10.9 The CMIA removed the involvement of the executive in the review process by shifting responsibility for these decisions to the judiciary (the Supreme Court or County Court).
  2. 10.10 The CMIA also provided for:
  • a new process for the variation and revocation of supervision orders, including processes for the review of supervision orders clarifying the criteria on which the review should be based
  • a ‘comprehensive system of reports’ in relation to people subject to supervision orders, to ensure that they have regular reviews and are not lost in the system6
  • a major review by a court for each person subject to a supervision order to consider whether to release the person or reduce the degree of supervision to which the person is subject following the expiry of the nominal term.7

Leave under supervision orders

  1. 10.11 The CMIA established an independent body—the Forensic Leave Panel—to be the main leave decision-making body. The Panel was established to increase the transparency
    and accessibility of the leave process that the ‘Governor’s pleasure’ system lacked.8
    The CMIA introduced four different types of leave with more specificity on their nature and durations. The Panel makes the decisions on the majority of leave applications.
  2. 10.12 In both the review and leave process, the CMIA introduced the right of people subject
    to supervision orders to appear at hearings and more substantial appeal rights.

The pathway for gradual reintegration and the principle of least restriction

  1. 10.13 The CMIA system of supervision has been characterised as ‘gradualist’9 or ‘staggered’,10
    in recognition ‘that the treatment and reintegration of people with a mental disorder is most appropriately considered on a gradual basis’.
    11 The CMIA therefore envisages a pathway for release for a person subject to a supervision order, where a person on a custodial supervision order receives increasing leave entitlements (from on-ground leave, both supervised then unsupervised, to off-ground leave, both supervised then unsupervised, and then extended leave), eventually ‘graduates’ to a non-custodial supervision order and is finally released following revocation of the non-custodial supervision order.12
  2. 10.14 This pathway is designed to operate in conjunction with the principle of least restriction which underpins the CMIA’s supervision and review framework. The principle of least restriction requires ‘that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community’.13
  3. 10.15 A key question the Commission raised in the consultation paper was whether this staggered pathway for release is operating well in practice for all people subject to supervision orders (for both people with a mental illness and people with an intellectual disability or other cognitive impairment). In particular, the Commission asked what improvements, if any, could be made to the CMIA decision-making, leave and review framework at a systemic level.
  4. 10.16 There were multiple observations in submissions and consultations that supervised people are not progressing through the system as they should be, and that practices are not always consistent with the pathway for gradual reintegration and the principle of least restriction. Forensicare’s Patient Consulting Group observed:

There seems to be a minimum time people have to stay supervised, regardless of whether you are well or not. Sometimes it feels as though they just have to keep you here for a period of time just because that is what is expected.14

 

  1. 10.17 Submissions that addressed this subject and those consulted attributed the ‘inertia’15 working against progression along the CMIA pathway to characteristics of the current supervision and review system:
  • Over-cautiousness or undue ‘conservatism’ in the approach of people involved in the system, from psychiatrists to the Forensic Leave Panel and the court16—One group in consultations thought that the main ‘block’ in progression was at the stage where a person was under a non-custodial supervision order and that these orders were being relied on as a ‘safety net’.17 Freckelton has observed that the Supreme Court has been more liberal in varying orders from a custodial supervision order to non-custodial supervision order than in revoking supervisory status completely.18 This has also been the subject of other academic discussion19 and the subject of a PhD study published in 2010, the findings of which are discussed at [10.137]­–[10.148] in this chapter.20
  • The presumptions that apply in reviews of supervision orders—The effect of these is to place a significant onus on the supervised person to convince the court that the level of supervision should be reduced by ‘disproving’ that there is any risk to community safety, rather than the state being required to advance positive evidence that demonstrates the continued need for the existing level of supervision.21
  • The way community safety is considered—Some people observed that there was a ‘lack of rigour’ in applying the test for ‘endangerment’ used throughout the CMIA. Decision makers tend to be overly risk-averse and will decline a reduction in the level of supervision or a grant of leave at any identification of risk, no matter its significance.22
  • A lack of flexibility in the system—There is little scope to respond to a breach of a non-custodial supervision order in a way that is proportionate to the behaviour encompassed by the breach. Breaches of differing levels, for example, use of alcohol or drugs, or further offending behaviour, can result in the same consequence of a significant reversal of the pathway towards gradual reintegration. It will usually take some years before the supervised person can return to the position they were in before the breach and there can be inconsistency in decision making in these cases.23
  1. 10.18 It was also observed that there was a lack of less restrictive facilities for supervised people to ‘step down’ to.24 The system’s lack of flexibility in this area could result in a mismatch between the supervision the person should ideally receive and the supervision order that is actually made.
  2. 10.19 The slow progression is even more pronounced for people with an intellectual disability who are subject to supervision orders under the CMIA. This was attributed to a lack of specialist accommodation, support and treatment.25 In particular, it was noted that there was a lack of mandated requirements for planning for treatment and reintegration.26

 

  1. 10.20 The Commission discusses this issue in further detail in Chapter 11, which contains the Commission’s findings regarding the operation of the CMIA system of supervision for people with an intellectual disability or other cognitive impairment and its recommendations to ensure a person-centred approach to that cohort. Chapter 11 also contains the Commission’s recommendations to address the lack of less restrictive facilities for people with a mental illness and barriers to accessing facilities for people with an intellectual disability.
  2. 10.21 The Commission is of the view that the characteristics of the system listed above are inconsistent with the CMIA’s principle of gradual integration. This conclusion has framed the Commission’s approach to recommending change in this area of the
    CMIA’s operation.
  3. 10.22 The Commission’s recommendations seek to establish a new framework to govern review and leave decisions so that the level of supervision and pathway to gradual reintegration is more closely tied to the person’s actual risk to the community and their recovery, progress or decline. Gradual reductions in the level of supervision and progression along the pathway should not be barred by the availability of services, nor should they be impeded by an unfounded conservatism among decision makers or within the CMIA itself. The Commission is of the view that a cautious approach is warranted in CMIA cases. However, where there is over-cautiousness that results in a person being subject to a higher level of supervision than is consistent with the minimum required to protect community safety, this is inconsistent with the principles underpinning the CMIA, including the principle of least restriction. It could also result in the continued stigmatisation of the CMIA cohort, which would undermine their ability to return to society as functioning members.

Decision makers under the supervision, review
and leave framework

  1. 10.23 In this section, the Commission examines the key decision-making bodies in the CMIA system of supervision. In particular, the courts, the Forensic Leave Panel and the Internal Leave Review Committee. The Commission considers the following issues:
  • whether Victoria should adopt a different model of decision making to the judicial model that currently exists
  • whether transparency and continuity in decision making regarding leave can
    be improved
  • the role of the Internal Leave Review Committee in leave decisions involving
    forensic patients.

The judicial model of decision making

  1. 10.24 Under the CMIA, the judiciary has responsibility for decisions regarding supervision, rather than the executive as was the case under the Governor’s pleasure regime.
  2. 10.25 The criminal jurisdictions of the Supreme Court and County Court make decisions on:
  • the imposition of supervision orders
  • the review, variation and revocation of supervision orders
  • decisions to grant, revoke or renew extended leave.27

 

  1. 10.26 In the consultation paper, the Commission asked whether a specialised independent court or tribunal should be considered as an alternative to the current judicial model of decision making. This was based on the notion identified in the Commission’s preliminary consultations that an independent court or tribunal could embed a higher level of expertise in forensic mental health and disability and a greater involvement of clinicians in decision making. The consultation paper highlighted jurisdictions that employed different models of decision making involving independent courts or tribunals:
  • In Queensland, a Mental Health Court comprises a judicial officer and two psychiatrists. The Mental Health Court makes the initial disposition and the Mental Health Review Tribunal then reviews the person under the forensic order at least
    every six months.
    28
  • In New South Wales, a criminal court makes the initial order for supervision, but the Mental Health Review Tribunal reviews the orders following the initial order.29
  • In the Australian Capital Territory, the hearing proceeds in a criminal court but the Civil and Administrative Tribunal makes and reviews the order.30

Views in submissions and consultations

  1. 10.27 There was some support for an alternative model that did not rely on the judicial model to make supervision and review decisions.31 However, most submissions did not comment on whether Victoria should have a model other than the judicial model.
  2. 10.28 There was slightly more support for maintaining the current model of decision making.
    It was noted that:
  • The judicial scrutiny of CMIA matters was warranted because the decisions being made are not entirely clinical, but have a legal dimension and implications for human rights and the community.32
  • The judiciary confers greater legitimacy on the decisions being made.33
  • There is value in having multiple judges from a larger pool to assess supervision orders rather than being dependent on judges from a smaller pool under an alternative model.34
  • Having to transfer a matter to a specialist court could cause delay and disruption.35
  1. 10.29 The following advantages of an alternative model, such as a model based on the Queensland Mental Health Court or the New South Wales Mental Health Review Tribunal, were raised:
  • Expertise could be better embedded in an alternative model. For example, judges and barristers would develop expertise practising in that field and independent psychiatrists could assist the court or tribunal.36
  • It would reduce the workload that is now being placed on the judiciary in the
    criminal jurisdiction, which can detract from their principal responsibility of conducting jury trials.37

 

  • It may be more appropriate for a separate tribunal to be involved in decisions under the processes for review, variation and revocation of supervision orders and extended leave rather than judges of a court where the original supervision order was made.38

The Commission’s conclusion

  1. 10.30 The Commission recognises that there are benefits of having a mental health court or tribunal, including the benefit of enhancing the inquisitorial nature of the hearing for people subject to the supervision order, victims and family members.39 The Commission also recognises the substantial resources and commitment that courts currently devote to the management of CMIA matters.
  2. 10.31 However, the Commission considers that the current level of support in Victoria for a mental health court or tribunal is not sufficient to sustain a recommendation for a change from the judicial model of decision making. The Commission also considers that the benefits of a judicial model of decision making currently outweigh the benefits of an alternative model.
The benefits of the judicial model
  1. 10.32 Courts have an established procedural framework and safeguards, including mechanisms for appeal.40 Since the introduction of the CMIA, Victorian courts have produced what has been described as ‘Australia’s richest and most complex jurisprudence in relation to mental health law’.41 The value of the jurisprudence and the expertise that has developed within the current judicial model should not be underestimated. Courts also provide continuity in approach. In many cases, the judge who made the supervision order is also responsible for the review and revocation of that order.42
  2. 10.33 The Commission agrees with the view that the judicial scrutiny of CMIA matters is warranted, particularly because it concerns decisions on the initial and continued detention of a person and community safety. As Justice Vincent observed in his submission to the Community Development Committee as part of its Inquiry into
    Persons Detained at the Governor’s Pleasure
    , CMIA matters have a public dimension:

The individual concerned has been detained following the conduct of a public court hearing and is subject to a public order. The problem should go back to that kind of body and be dealt with in the same way.43

  1. 10.34 The Commission also agrees that courts confer legitimacy and a high ‘degree of authority’,44 which is more effective at ensuring confidence within the community and for victims and providing assurance that their interests are important and have not been forgotten.45 The Community Development Committee ultimately recommended that given the nature of decisions about risk that are required in this area, the community would have the most confidence in the decisions of a court.46

 

  1. 10.35 In addition, the separation and independence of courts from the executive and legislative branches of government, fundamental to the rule of law, is a key feature of the judicial model of decision making, which in the Commission’s view, should be retained in the form of the judicial review of supervision orders and decisions regarding extended leave. Together with the degree of authority the court confers, this is integral to ensuring there is community confidence in decision making regarding matters of community safety and the liberty of people subject to supervision under the CMIA.
The ‘Kable principle’
  1. 10.36 The Commission has considered the concern noted in consultations regarding the judiciary exercising functions connected to the review of orders and granting of extended leave post-imposition of the original supervision order.
  2. 10.37 When a court conducts a hearing connected to the review of or granting of extended leave under a supervision order that has been imposed under the CMIA, it is sitting as a court and thus exercising judicial power. This invokes the rule, known as the ‘Kable principle’, that it is unconstitutional for a state court to exercise a power that is fundamentally incompatible with its capacity to exercise federal judicial power under Chapter III of the Commonwealth Constitution.47 Such powers are said to impair the court’s ‘institutional integrity’.48
  3. 10.38 Whether or not the exercise of a particular function impairs a state court’s institutional integrity depends in part on whether it requires the court to conduct itself in a way that is so contrary to its ‘essential characteristics’ that it would appear to the public that the court was acting at the direction of the executive. Those characteristics include those listed by Chief Justice French in the case of Condon v Pompano Pty Ltd:49
  • the reality and appearance of decisional independence and impartiality
  • the application of procedural fairness
  • adherence as a general rule to the open court principle
  • the provision of reasons for the courts’ decisions.50
  1. 10.39 These characteristics are identifiable throughout the CMIA review and extended leave decision-making process, particularly through the following features:
  • open hearings in court
  • rights of appearance, including for the person subject to the supervision order, the Director of Public Prosecutions, the Attorney-General and other ‘interested parties’51 (within a ‘quasi-inquisitorial’ framework)52
  • the ultimate decision regarding reductions on the level of supervision and restrictions on a supervised person’s liberty rests solely with the court
  • rights of appeal against decisions made regarding confirmation or variation53 and revocation of non-custodial supervision orders54
  • the provision of reasons for decisions regarding the confirmation, variation or revocation of orders or the granting, extension or revocation of extended leave.
  1. 10.40 It is clear that these features of the CMIA review and extended leave processes do not depart from the required characteristics listed above at [10.38]. Therefore, it would not appear that these processes alter the court’s functions in a way that would attract the Kable principle.
  2. 10.41 The Commission recognises that one of the major advantages of a mental health court
    or tribunal is their capacity to embed forensic expertise in their processes. As Freckelton has observed:

Inquisitorial review bodies constituted by lawyers experienced in mental health, psychiatrists and community members with lengthy experience in mental health generally enjoy a significant advantage over the courts in exploring the dangerousness
of persons with mental illness and assimilating the presentation of such patients.55

  1. 10.42 However, any deficiencies in the judicial model in terms of forensic expertise can be addressed by improving the current CMIA framework in other ways. For example, the Commission recommends an expansion and resourcing of the Mental Health Court Liaison Service (MHCLS) program (Recommendation 29) and providing the Magistrates’ Court with the power to obtain independent expert reports (Recommendation 28(g)).
  2. 10.43 The recommendations the Commission makes on arrangements for considering and representing interests under the CMIA in Chapter 8 also seek to bring review hearings more in line with the inquisitorial format of hearings in a mental health court or tribunal.
  3. 10.44 The Commission therefore does not recommend a change from the judicial model of decision making currently under the CMIA.

Recommendation

79 The judicial model of decision making should be retained under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

 

Transparency and continuity in leave decisions

Purpose of leave

  1. 10.45 Under the CMIA, forensic patients and forensic residents are able to apply for a leave
    of absence from their supervision order. Forensic patients and forensic residents may
    be granted leave from their place of custody:
  • to access necessary services that cannot be provided in custody
    (such as medical services)
  • to attend court
  • on humanitarian grounds (for example, attending a family member’s funeral)
  • in anticipation of discharge (for example, to find accommodation or
    seek employment)
  • as part of a rehabilitation plan to develop the social skills necessary for rehabilitation and social reintegration.56

 

  1. 10.46 The purpose of leave is to allow a person on a custodial supervision order to gradually reintegrate into the community. A graduated approach to granting leave aims to balance the person’s rehabilitative needs with the safety of the community. A person’s progress through the various types of leave will therefore vary from individual to individual and will depend on the nature of the person’s illness or condition, their response to treatment or rehabilitation and their risk profile.57

Types of leave

  1. 10.47 The types of leave available under the CMIA are:
  • Special leave of absence—allows a forensic patient or forensic resident on a custodial supervision order to leave their place of detention and receive services for a period not exceeding seven days for the purpose of receiving medical treatment, or 24 hours for non-medical treatment purposes.58
  • On-ground leave—allows a forensic patient or forensic resident to leave their place of detention and receive services, but requires them to remain ‘within the surrounds’ of the place of detention.59
  • Limited off-ground leave—allows a forensic patient or forensic resident, for a maximum of six months, to leave their place of detention between the hours of
    6am and 9pm and outside those hours on a maximum of three days in any
    seven-day period.60
  • Extended leave—allows a forensic patient or a forensic resident to leave the place where they are being detained for a period of time not exceeding 12 months.61

Who can authorise leave?

  1. 10.48 Applications for special leave are made to the authorised psychiatrist (for forensic patients) or the Secretary to the Department of Human Services (for forensic residents).62
  2. 10.49 The CMIA established the Forensic Leave Panel to hear and determine applications for
    on-ground and limited off-ground leave and appeals of special leave decisions.63
  3. 10.50 The Forensic Leave Panel’s role is ‘integral to the rehabilitation of patients and residents and facilitates their reintegration into the community’.64 The Panel’s membership consists of one or more judges of the Supreme Court, one or more judges of the County Court, the Chief Psychiatrist and any members necessary from time to time for the proper functioning of the Panel.65
  4. 10.51 For the purpose of a hearing, the ‘panel’ consists of a judicial member, a member appointed to the panel to represent the view and opinions of members of the community, and the person who is primarily responsible for the treatment and care of the applicant who is:
  • for forensic patients, the Chief Psychiatrist and a medical practitioner with experience in forensic psychiatry, or
  • for forensic residents, a registered psychologist with forensic experience.66

 

  1. 10.52 The judicial member of the Forensic Leave Panel is the chairperson for the hearing.
  2. 10.53 The Supreme Court and County Court make decisions regarding extended leave.
    The court that made the original supervision order will hear and determine applications for extended leave under a supervision order.
  3. 10.54 In the consultation paper, the Commission asked about the operation of the Forensic Leave Panel and whether there was a need for changes to the leave processes to make them more just, efficient and consistent with the principles underlying the CMIA.
    The Commission also sought feedback on people’s experiences of leave processes.

Continuity in decision making between the Forensic Leave Panel and the
court and within the Panel

Views in submissions and consultations
  1. 10.55 The Commission was informed that courts require a high level of reassurance before they approve an application for extended leave.67 This appears to be because the court will often not have the necessary background information on the supervised person’s progress through earlier leave stages. This is in contrast to the Forensic Leave Panel, who would have seen their progress through the various stages of leave before the application for extended leave.
  2. 10.56 The disparity in information can result in an inefficient allocation of resources. Associate Professor Ruth Vine observed:

persons who have extensive leave to the community still require a bed at the forensic service resulting in an exit block. … in the context of the current very limited services, this gap between the threshold set by the Forensic Leave Panel and that set by the Court results in (in my view) unnecessary utilisation of high cost, limited availability services to the detriment of other persons who need those services.68

  1. 10.57 The Commission’s recommendation in Chapter 11 to establish a medium-secure facility for forensic patients aims to address the shortage of available ‘step down’ options for people transitioning through the CMIA system and removes the block in progression. In addition, the Commission considers that decisions should be based on a balanced assessment of their risk to the community and on their recovery or progress. Any obstacle in a supervised person’s gradual reintegration that is tied to gaps in information rather than these factors should be addressed. This is consistent with the CMIA principle that the restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community. The Commission is therefore of the view that it is necessary to address any reluctance by the court to grant extended leave because it lacks background on the ongoing progress of the supervised person.
  2. 10.58 At the Commission’s roundtable on the CMIA in the higher courts, it was suggested that the court should take into account any leave the person has already taken and the progress made in those periods of leave.69 Issues relating to the continuity of decision making within the Forensic Leave Panel were also raised. Members of the Panel the Commission consulted noted that the way the Panel is structured means that members
    do not always know how a particular person is progressing through the leave system from a holistic point of view. The same members would not sit on a person’s panel each time they applied for leave. Members noted the importance of being provided with relevant documents from previous hearings, particularly previous conditions imposed
    on leave applications or reasons why leave was previously refused.70
The Commission’s conclusion
  1. 10.59 The Commission recognises the importance of continuity in decision making to ensure that a person’s progress through the supervision regime is not hindered because of a lack of information.
  2. 10.60 The Commission agrees with the suggestion proposed at the roundtable that courts should take into account previous leave and progress made by a person while on leave. Accordingly, it recommends that in deciding whether to grant leave, the court must have regard to any on-ground or off-ground leave the person has been granted and their compliance with the conditions of their leave. This information could be provided together with the application for extended leave, for example, as part of the leave plan.71
  3. 10.61 The court is already required to take into account a person’s extended leave and their compliance with the conditions of the extended leave when varying a custodial supervision order to a non-custodial supervision order.72 This provision, coupled with the Commission’s recommendation, will ensure that the person’s progress throughout the leave system will be taken into consideration by the court in decision making.
  4. 10.62 In the Commission’s view, the Forensic Leave Panel should also be required to consider any on-ground or off-ground leave the person has been granted and their compliance with the conditions of their leave when determining any grant of leave. This would
    ensure that Panel members receive and consider this information in all applications.
    The Commission’s recommendation below to encourage the Panel to provide written reasons will also assist in ensuring that Panel members have greater access to the
    reasons why leave was previously refused.
  5. 10.63 From an operational perspective, the Forensic Leave Panel could provide its members with information on previous leave taken by the supervised person and any written reasons for decisions on previous applications using its own internal processes. Alternatively, the Panel may request this information as part of the ‘leave plan’.73

Recommendation

80 Sections 40(1) and 54(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require the court and the Forensic Leave Panel respectively to have regard to any on-ground or off-ground leave the person has been granted and their compliance with the conditions of their leave when deciding whether to grant leave.

 

Improving transparency and communication in the leave process

Views in submissions and consultations
  1. 10.64 Submissions and people consulted indicated that there was a lack of transparency in the leave decision-making process, which in some cases had led to a negative perception of such processes. In particular:
  • Some supervised people felt unclear about the ‘way out’ of Thomas Embling Hospital.74 They felt that supervised people should be made aware of the processes that need to be satisfied before a person can be released.75
  • There was a lack of understanding about how Forensic Leave Panel decisions were made.76 One participant in Thomas Embling Hospital’s Consumer Advisory Group said that it was unclear why some people have their leave approved and others do not.77
  • Some supervised people noted that it was their experience that when informing them of decisions on leave applications, the Forensic Leave Panel does not provide reasons why they had not been granted leave. Nor was it their experience that the Panel provided feedback on how they could work towards obtaining leave in the future. They noted that written feedback, in addition to oral feedback, was important because they may not remember all the details of the oral feedback.78
  1. 10.65 Members of the Forensic Leave Panel consulted by the Commission were of the view
    that transparency could be increased by improving the way reasons are provided to
    forensic patients and residents, particularly in terms of how reasons are verbally communicated to patients and residents at hearings. It was noted that the nature and extent of oral decisions and reasons can vary from hearing to hearing. Members made
    the following suggestions:
  • When leave is granted, it would be valuable to read out each type of leave that has been granted and any variations in or rejections of leave.
  • The Panel should explain why it has, as an independent body, reached its conclusion. This will also help allay any resentment the supervised person might feel towards the treating team following a negative decision.79
  1. 10.66 However, it was also noted that providing written reasons for every item on the application would require substantial resources.80
  2. 10.67 The Commission’s advisory committee agreed that the communication approach of the Forensic Leave Panel could be improved.81
The Commission’s conclusion
  1. 10.68 The Commission is conscious of the considerable significance leave decisions have on the leave applicant. As Forensicare’s Patient Consulting Group noted:

Forensic Leave Panel hearings can be intimidating because there is so much riding on it. It can also be exciting if you get your leave or such a downer if you don’t.82

  1. 10.69 It is clear that the Forensic Leave Panel also recognises the profound effect its hearings have. In its 2010 annual report, the Panel noted:

The panel recognises that attending a hearing can be difficult and stressful for some forensic patients and residents. The panel seeks to create an environment where patients and residents feel able to express their views and wishes freely. The panel is also sensitive to the needs of treating staff, who must balance the requirement to provide candid evidence to the panel with the need to maintain a healthy therapeutic relationship with the patient or resident.83

  1. 10.70 Given the importance of leave decisions to supervised people, the Commission agrees with the view that as far as possible these decisions should be communicated in a way that will assist their understanding of:
  • the independence of the decision-making process
  • the outcome of a particular hearing
  • the reasons a leave application was approved or rejected
  • the steps they can take to increase the likelihood of success of their next application.
  1. 10.71 The Commission acknowledges that this already occurs in leave hearings, but that the practice could be encouraged further and be applied more consistently. Providing comprehensive reasons promotes the principles of transparency and accountability that runs through the CMIA and supports the individualised approach the Commission considers should be taken to the CMIA cohort. Feedback on how a supervised person
    can strengthen their future leave applications encourages the recovery and progress of the person, which is consistent with the CMIA’s therapeutic focus.
  2. 10.72 The Forensic Leave Panel is already required to provide reasons for its decisions.84
    The Commission considers that it is unnecessary to add to this requirement through further legislation. However, it could help address perceptions and experiences of people subject to leave processes if efforts were focussed on the communication methods employed in delivering reasons and communicating with leave applicants. The Commission has thus formed the view that Panel members should be provided with education and training to facilitate improvements in this area, including the verbal communication of reasons. This forms part of the package of recommendations made regarding education and training for other people working under the CMIA that the Commission recommends in Chapter 2.
  3. 10.73 The Forensic Leave Panel may give reasons orally, but a person applying for leave can
    also request the reasons in writing.85 While the Commission can see the value in providing written reasons following each hearing, making it mandatory in every case would be too onerous for the Panel. Determining leave applications already requires a substantial commitment from Panel members and staff. The Commission also notes that where an application for leave is rejected by the Panel, it is required to write to the person who applied for leave informing them that they have the right to request written reasons for the decision.86
  4. 10.74 The Commission considers, however, that there is a need to increase awareness of the right to apply for written reasons. In 2011 only one patient requested a written statement of reasons from the Forensic Leave Panel in 2011.87 This is inconsistent with the feedback the Commission received that leave applicants want to be provided with written reasons. The Commission therefore recommends that as part of the education and training for Panel members, members are encouraged to inform the leave applicant of their right to request written reasons at the end of the hearing. This will also increase the awareness
    of the right to request reasons among the people who supervise the leave applicant,
    such as the treating team.

Recommendation

81 An education and training package should be developed for Forensic Leave Panel members that:

(a) emphasises the importance of explaining each type of leave that has been granted or rejected and any variations in leave

(b) emphasises the communication of the reasons why the Panel, as an independent body, has reached its decision to approve or reject the
leave application

(c) encourages Panel members to provide suggestions on how the
person can improve their likelihood of success in subsequent leave applications, and

(d) ensures that Panel members inform the person of their right to request written reasons at the end of the hearing.

 

The role of the Internal Leave Review Committee

  1. 10.75 The Vincent Review was commissioned in 2001 to consider leave arrangements for patients at the Thomas Embling Hospital in response to community safety concerns after a patient absconded from the hospital. The Vincent Review recommended establishing a committee to comment on leave applications, convened by Forensicare’s Clinical Director and comprising the Chief Psychiatrist, senior clinical staff and heads of treating teams.
    The purpose of such a committee was to:
  • consider leave applications (other than applications for special leave)
  • consider the associated treatment plans
  • ensure relevant clinical issues are considered
  • formally endorse the plans.
  1. 10.76 Under the proposal, the Clinical Director was then to pass on the advice of the committee to the formal leave decision-making body.88
  2. 10.77 Forensicare implemented the Vincent Review’s recommendation by establishing the Internal Leave Review Committee.
  3. 10.78 In the consultation paper the Commission asked whether changes are required to the operation of the Internal Leave Review Committee.
Views in submissions and consultations
  1. 10.79 The information the Internal Leave Review Committee produces was viewed positively. Forensic Leave Panel members consulted said that the information provided by the Committee was comprehensive and useful for the Panel’s decision making.89 The Office of Chief Psychiatrist observed that the Committee enabled the Panel to be assisted by expert advice and the background the Committee has in the matter.90
  2. 10.80 However, the Commission also received feedback that the Internal Leave Review Committee was perceived as being risk-averse91 and lacking in transparency.92 At a practical level, Victoria Legal Aid observed that the Internal Leave Review Committee’s processes can result in applications being delayed or discontinued.93
  3. 10.81 The following suggestions were made on how the Internal Leave Review Committee’s process could be improved:
  • Where the Internal Leave Review Committee does not support a leave application, their reasons should be explained in more depth, because their decisions are
    very influential.94
  • Leave applicants could receive more feedback from the Internal Leave Review Committee and leave applicants should be allowed to attend the Committee’s meetings if they wish.95
  • It is unclear whether leave applicants are given the Committee’s documents
    relating to their application. These should be provided to them as a matter of procedural fairness.96
  1. 10.82 Victoria Legal Aid submitted that the functions of the Internal Leave Committee should be reviewed to assess whether it is consistent with the purposes of the CMIA and the statutory functions of the Forensic Leave Panel.97 It also submitted that all leave applications be considered by the Forensic Leave Panel, regardless of whether they have been declined by the Internal Leave Review Committee, and that a disclosure framework be established to ensure that the Committee has all applications and documentation.
  2. 10.83 Forensicare submitted that it did not support an approach under which the Internal
    Leave Review Committee’s existence and operations would be legislatively mandated. However, Forensicare recognised a need to review the Committee in light of a recovery approach and welcomed the opportunity to consider and respond to any feedback received about the Committee by the Commission.98
The Commission’s conclusion
  1. 10.84 As highlighted in consultations with the Forensic Leave Panel and the Chief Psychiatrist, the Internal Leave Review Committee provides benefits to the leave process. It is a means of providing useful expert assistance to the Panel or the court and an extra degree of oversight for leave applications. Further, the Internal Leave Review Committee ensures consistency in the approach taken by Forensicare to preparing documentation (such as applicant profiles and leave plans or statements).99
  2. 10.85 Unlike the Forensic Leave Panel, the Internal Leave Review Committee does not have a legislative basis. Its policy, procedures and decision making are determined internally,
    even though its recommendations may be influential in the Panel or court’s decision making. The Commission therefore accepts that this may lead to the concerns expressed in submissions and consultations about how the Internal Leave Review Committee operates in terms of transparency, fairness and consistency with the principles underpinning the CMIA.
  3. 10.86 However, the Commission considers that legislative regulation of the Committee would be ineffective and could undermine its original purpose. As one of the Commission’s advisory committee members noted, the legislative regulation of the Committee may only lead to the formation of another committee that sits below it, which would add another stage to an already bureaucratic leave process. In the Commission’s view, the best way to address the concerns raised in submissions and consultations is through a response by Forensicare to the feedback in this report and a review of the operation of the Committee.
  4. 10.87 The Commission therefore recommends that the Internal Leave Review Committee
    be reviewed to ensure that it operates consistently with the principles that underlie
    the CMIA. The Commission considers that operational considerations should not
    take precedence over the principles that underlie the CMIA, which should form the primary basis of the Committee’s recommendations in leave applications.

Recommendation

82 A review should be conducted of the processes of the Internal Leave Review Committee to consider whether they operate consistently with the principles that underlie the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

 

  1. 10.88 The Commission notes that there is no equivalent body that operates in the same way in relation to forensic residents who are supervised by the Department of Human Services.

Improvements to the review and release framework

Overview of the current review process

  1. 10.89 As discussed at [10.6], a supervision order under the CMIA has an indefinite term.100
    This means that the person can be subject to the order for an indefinite period, potentially for the rest of their life.
  2. 10.90 Once a court makes a supervision order, the court can vary or revoke it. The process of varying and reviewing orders, together with the grant of extended leave, facilitates the transition of people subject to supervision orders through the CMIA’s staggered system
    of release.
  3. 10.91 A court can vary or revoke a supervision order using three procedures under the CMIA:
  • at a major review
  • in the course of a review or further review
  • through an application to vary or revoke the supervision order.

 

  1. 10.92 The court that originally made the supervision order must conduct a ‘major review’ of the order at least three months before the end of the ‘nominal term’ of the order, and at intervals not exceeding five years after that for the duration of the order.101
  2. 10.93 When a person is declared liable to supervision and the court makes a supervision order in relation to that person, the court may direct a ‘review’ of the matter at the end of a certain period.102 Unless the court revokes the order, the court may also direct a ‘further review’ of the matter following an application to vary or revoke an order or a ‘review’ of an order.103 The court may order a further review any number of times.
  3. 10.94 When a person subject to a custodial supervision order applies to vary the order, or has a review or further review of their order, the court can decide that the order will stay in place either by confirming the order or by varying the place of custody. Alternatively,
    the court can decide to change the custodial supervision order by varying the order to
    a non-custodial supervision order.104
  4. 10.95 When a person subject to a non-custodial supervision order applies to vary or revoke that order, or has a review or further review of the non-custodial supervision order, the court can decide not to change the order either by confirming the order or by varying the conditions of the order. Alternatively, the court may change the order. The court can vary the order to a custodial supervision order, resulting in the detention of the person, or it can revoke the non-custodial supervision order and release the person.105
  5. 10.96 In deciding whether to vary or revoke a supervision order, the court must have regard
    to matters such as the person’s mental impairment or other condition or disability.106
    These are discussed in more detail at [10.188]–[10.192].
  6. 10.97 In the following section, the Commission considers the following issues:
  • the retention of indefinite supervision orders
  • problems with nominal terms and the need for a new approach to the timing of major reviews
  • the presumptions that apply at each decision-making stage
  • the frequency of reviews and further reviews.

Retaining indefinite terms for supervision orders in the higher courts

  1. 10.98 In the consultation paper the Commission discussed the influence that the indefinite nature of the regime had on the decisions that accused make.107 For example, a person may choose to plead guilty and receive the certainty of a sentence rather than an indefinite term. The person may choose to do this even though they had a legitimate mental impairment defence to the charge. The Commission noted that these outcomes would be inconsistent with the CMIA’s underlying principles. There could be the abrogation of the right to a fair trial for people who are unfit to stand trial. Alternatively, the result may be the illegitimate punishment of a person who is not criminally responsible for an offence. This can also result in the further over-representation of people with mental conditions in the prison population.

 

  1. 10.99 The Commission also noted the detrimental effect that imposing an order without a release date can have on the wellbeing of the person subject to the order, which may be contrary to the CMIA’s therapeutic focus. However, the consultation paper also recognised the need to strike a balance with other principles, such as the protection
    of the community from the risk posed by the person and the interests of victims.

Views in submissions and consultations

  1. 10.100 Submissions that addressed this issue and those consulted pointed to weaknesses of making orders for an indefinite term:
  • It creates a perception that it would be better for the accused to plead guilty because there is more certainty when serving a sentence.108
  • It causes supervised people to feel trapped or lack the motivation to get better.109
  • The supervision period is longer than the sentence a person would have served
    had they been found guilty.110
  • It heightens the risk of arbitrary detention.111
  • It fosters the perception that the revocation or variation of orders will be the ‘exception rather than the norm’.112
  1. 10.101 However, others thought that an indefinite term acted as a safety net and was part
    of what kept them well or helped them ‘maintain focus’.113
  2. 10.102 The Commission did not receive much feedback on whether or how indefinite orders should be changed. There was some qualified support for orders that were fixed term.114 However, it was also noted that after a fixed-term order lapsed, there might be some people who would still need to be managed because of the risk they posed to the community and they may not meet the criteria for an order under the civil system.115
  3. 10.103 It was suggested that if supervision orders were to remain indefinite, there should be a flexible decision-making framework in place once an order is made.116
  4. 10.104 The Commission’s advisory committee expressed the view that indefinite terms were a way of recognising that CMIA orders were based on a therapeutic framework, rather than one that is corrections-based (where orders have a definite term).
  5. 10.105 Further, members of the Commission’s advisory committee observed that any attempt
    to introduce fixed-term orders would lead to an additional complicated process to extend those orders when they expired and would render the process akin to a sentencing exercise, whereby the court would be required to undertake a prediction of the risk that the person might pose in the future when setting a limited term at the time the supervision order is imposed. The Commission was advised that it would be very difficult to do this in relation to people who are subject to supervision orders. For example,
    some people with a mental illness may recover very quickly, while others may have a longer period of recovery. For people with an intellectual disability or other cognitive impairment, a different approach may be required to predict their ongoing risk.

 

  1. 10.106 Indefinite terms, along with a flexible staggered process for transition, were favoured as a mechanism for providing supervision within which gradual reductions in restrictions can occur that are commensurate with the particular risk posed by an individual at different stages of the process.

The Commission’s conclusion

  1. 10.107 The Community Development Committee, whose report formed the basis for the CMIA, grappled at length with the issue of whether an indefinite or limited term should be imposed on people. In trying to balance the need for community protection against arbitrary detention, the Community Development Committee said:

a more structured and rigorous release process will significantly reduce the likelihood
of persons being detained for longer than their condition warrants.117

  1. 10.108 It noted in particular the comments made by Dr David Neal, in expressing support for limiting terms, about the risks in each system:

One danger is the tariff and the other danger is open-ended detention becoming,
‘Let’s play it safe and hold people well beyond when they ought to have been held
if their mental illness were really the consideration.’ The underlying question is:
Are these people continuing to be ill and continuing to be dangerous?118

  1. 10.109 The Community Development Committee ultimately recommended a limiting term for supervision orders that denoted the time after which an order would lapse.
  2. 10.110 The Commission acknowledges the tensions in a system that strives to achieve community protection while at the same time provides safeguards against the arbitrary detention of people who have not been found criminally responsible or not had their criminal responsibility determined through the usual criminal process.
  3. 10.111 The Commission is of the view that indefinite term orders in the higher courts are consistent with the therapeutic focus of the CMIA. Such orders are also consistent with the principle of community protection underlying the CMIA that recognises that the recovery of a supervised person should proceed on a gradual basis so that their risk can be managed to a point where they can ultimately be reintegrated into the community.
  4. 10.112 The supervision of people under the CMIA is justified on these principles and not on the basis of proportionality or deterrence which would form the basis of a criminal sentence. In the Commission’s view, the duration of orders should therefore be based on the time a supervised person needs to recover or progress through the system of gradual reintegration before they can safely return to the community. The length of time it takes for this to happen varies from person to person and is difficult to predict at the time of the making of a supervision order.
  5. 10.113 On balance, the Commission considers that supervision orders should continue to be indefinite. However, reforms should be targeted at ensuring the decision-making framework in place once an order is made is rigorous and ensures that the period a person is supervised closely reflects the minimum period necessary to address the person’s risk to the community. This is the focus of the Commission’s recommendations
    in this area. The Commission makes recommendations below to introduce changes designed to address the issues in [10.100] concerning the indefinite term of orders,
    as well as improving the operation of the gradual pathway in accordance with the intentions of the CMIA.

 

Recommendation

83 There should be no change to the indefinite term of supervision orders imposed in the higher courts as provided in section 27 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

 

Replacement of nominal term system with a new system of five-year ’progress reviews’

  1. 10.114 In the consultation paper the Commission sought views on whether the method for setting the nominal term should be changed, and if so, how it should be changed.
    The Commission also asked about the steps that could be taken to ensure that the
    phrase ‘nominal term’ was better understood.

The current nominal term system under the CMIA

  1. 10.115 When a court imposes a supervision order, it must then set a ‘nominal term’ in accordance with the CMIA. A nominal term is the period that specifies when the court is to conduct a major review of the order. The purpose of a major review is to determine whether to release the person subject to the supervision order.119
Purpose of a nominal term under the current law
  1. 10.116 The purpose of the nominal term is to ensure that the court reviews the supervision order over the indefinite period. If appropriate, having regard to a range of principles and factors, the court may reduce the level of supervision with a view to possible release.
    This reflects the principle of gradual reintegration and aims to ensure that the period
    of detention is referable to the person’s mental condition and risk posed to
    community safety.
  2. 10.117 The nominal term in the CMIA seeks to strike a balance between two competing considerations.120 On the one hand, it aims to prevent the detention of people on an indefinite order with no opportunity for review or release when they no longer pose a risk to the community. On the other hand, it aims to prevent the release of people subject
    to supervision orders while they still pose a certain level of risk to the community.
  3. 10.118 The key aim of a nominal term is to ensure that a person does not get ‘lost in the system’, as was the concern under the Governor’s pleasure regime, and to indicate the maximum time before a presumption in favour of reducing the level of supervision of the person
    is to apply.
Method for setting a nominal term under the current law
  1. 10.119 The setting of a nominal term is a mandatory requirement. A court is required to impose a nominal term in accordance with section 28 of the CMIA. The general approach to the setting of the nominal term is by reference to the maximum penalty of the offence that the person has been found not guilty of or found at a special hearing to have committed.
  2. 10.120 This is contained in a table in section 28 of the CMIA which provides as follows:
  • murder or treason—25 years (the penalty for murder and treason under the Crimes Act 1958 (Vic) is life imprisonment or such term of years as is fixed by the court).
  • a ‘serious offence’ within the meaning of the Sentencing Act 1991 (Vic)121
    the maximum term of imprisonment for the offence
  • any other offence that has a term of imprisonment as its statutory maximum penalty—half the maximum term of imprisonment for the offence
  • any other offence punishable by imprisonment where there is no statutory maximum penalty—a period specified by the court.
  1. 10.121 For example, for murder, the nominal term that must be imposed is 25 years. For the offence of rape, a ‘serious offence’ under the Sentencing Act, the nominal term that must be imposed is 25 years. For an offence such as indecent act with a child under 16 years, the nominal term would be half the maximum penalty for the offence, therefore
    five years.
  2. 10.122 In some cases, a person may be found not guilty because of mental impairment of more than one offence or found at a special hearing to have committed more than one offence. If this is the case, the nominal term is calculated by reference to the offence
    that carries the longest maximum term of imprisonment.122
  3. 10.123 Figure 6 illustrates the nominal terms imposed in the cases dealt with under the CMIA over the 12-year period from 2000–01 to 2011–12, where the court imposed either a custodial supervision order or a non-custodial supervision order in the higher courts
    (see Appendix D). It shows that almost three-quarters of the 47 custodial supervision orders (72.3 per cent) had a nominal term of 25 years, with murder the offence charged. Unconditional releases are also reflected in the figure as having a nominal term of zero. The nominal terms do not provide an accurate representation of the actual length of time that a person was detained under a custodial supervision order or was supervised in the community on a non-custodial supervision order. However, they provide a clear indication that the current approach of setting nominal terms by reference to the maximum penalty, results in people being potentially subject to long periods of detention.

Figure 6: length of nominal term 

 

Source: Sentencing Advisory Council, higher courts sentencing database

Figure 6: Length of nominal term in cases under the CMIA, 2000–01 to 2011–12

What happens at a major review?
  1. 10.124 In a major review of a custodial supervision order, there is a presumption in favour of varying the order to a non-custodial supervision order. The court must vary the order
    to a non-custodial supervision order, unless satisfied that the safety of the person
    subject to the order or members of the public will be seriously endangered because of
    the variation.123 If the court is satisfied that varying the order will seriously endanger
    the person or members of the public, the court must confirm the current order or vary the place of custody.124
  2. 10.125 In a major review of a non-custodial supervision order, the court may confirm the order, vary the conditions of the order or revoke the order.125 Unlike a major review of a custodial supervision order, a person subject to a non-custodial supervision order does not have the advantage of a presumption that the court will vary their order and release them. In that sense, the major review of a non-custodial supervision order is not very different to a usual review of a supervision order.

Views in submissions and consultations

  1. 10.126 Submissions that addressed this subject and the majority of people consulted did not agree with the current method of setting the nominal term and supported change in this area.126
Problems with the current nominal term approach
  1. 10.127 The Commission received the following feedback about nominal terms:
  • A nominal term is not reflective of outcomes or the supervision period.127
  • A sentence can be shorter than the nominal term.128
  • It does not give supervised people hope or aspirations for recovery.129
  • It can give supervised people false hope if they assume that the term is a
    definite term.130
  • The term is confusing to everyone.131 One participant described it as ‘terrifying’
    for the person under supervision and their family.132
  • It is not tailored to the individual.133
  • It is inappropriate for the term to be based on the maximum penalty of an offence
    the person has been found not guilty of because of mental impairment or found at
    a special hearing to have committed.134
  • It is unfair and misleading for the term to be based on the maximum penalty when
    it would be highly unusual to have the maximum sentence imposed if convicted.135
  • The nominal term is often of such a long period (for example, 25 years for the offence of murder) that it undermines its intended purpose as a safeguard against arbitrary detention.136
  1. 10.128 The only advantage of nominal terms identified was that it acts as a safeguard against arbitrary detention when the person no longer poses a risk to the community.137
  2. 10.129 The Office of Public Prosecutions submitted that it was unable to identify any problems with the current method of setting nominal terms.138
Suggestions for alternate approaches
  1. 10.130 As an alternative to nominal terms, some stakeholders were of the view that the frequency of reviews should be tailored to the individual.139 However, others pointed to the difficulty in forecasting what the term should be, and whether this should be decided by an expert or a judge.140

 

  1. 10.131 There was greater support for reviews at fixed intervals that were not dependent on the offence, or on the initiation of the court or the supervised person. The Victorian Human Rights and Equal Opportunity Commission said that this would provide:

a fundamental safeguard against arbitrary detention and unjustified limitations on a person’s human rights, by providing oversight of how the supervision order is operating, ensuring the continued appropriateness of the order, and guarding against people getting ‘lost in the system’.141

  1. 10.132 Forensicare submitted that major reviews at fixed intervals would remove confusion about the nominal term by making it clear to supervised people that their order is indefinite, but will be subject to judicial review at fixed intervals.142 Further, it would dissociate the timing of major reviews from a criminal sentence and refocus attention on the supervised person’s clinical progress.143
  2. 10.133 There was support for periods before a major review or other reviews ranging from every year to every five years.144
  3. 10.134 Most participants at the Commission’s roundtable on the CMIA and the higher courts
    also preferred major reviews at fixed intervals. These participants thought that this approach would be more straightforward to apply than deciding on a term depending
    on each case. Consultant psychiatrists noted that it would be difficult to assess how
    long it would take for the person to recover and their future risk at the time a supervision order is imposed. Setting a term in each case could also be subject to different judicial approaches, which in turn could lead to differences in outcomes for people in
    similar circumstances.
  4. 10.135 The advisory committee observed that the majority of people have their supervision order revoked before their major review. Advisory committee members generally supported a five-year term before a major review. It was noted that a five-year term would help address the problem of ‘warehousing’ people with an intellectual disability.145 Five years was also thought to be consistent with clinical experience and was identified to be the point where people started to show real progress. This view was also expressed at the Commission’s roundtable on the CMIA and the higher courts.146
  5. 10.136 Aside from changing the method of setting the nominal term, there was support for changing the phrase ‘nominal term’ itself because of the confusion the phrase caused. Suggestions included ‘major review period’, ‘minimum review period’, ‘progress review period’ or ‘review period’.

Available data about detention times under the current nominal term framework

  1. 10.137 A PhD study completed in 2010 contains publicly available information on the detention times of people subject to the CMIA. The study involved 146 participants comprising:
  • all individuals who had been found not guilty because of mental impairment since
    the enactment of the CMIA in 1997
  • individuals who had been found not guilty by reason of insanity prior to the CMIA but had been detained under the Governor’s pleasure system when the CMIA commenced and were thus transitioned into the CMIA system.

 

  1. 10.138 Data for the study was collected from mid-2005 to late 2006. Of the 146 participants, 123 were males and 23 were female, aged from 19.63 years to 81.44 years. Of the total 146 participants, 67 (45.9 per cent) had been found not guilty because of mental impairment of the offence of murder.147
  2. 10.139 The vast majority of the sample were people who were being or had been supervised
    by Forensicare (93.2 per cent, 136 in total). The remaining 10 participants (6.8 per cent) were supervised by the Department of Human Services. There were four main cohorts
    in the study:
  • 64 individuals who were subject to custodial supervision orders
  • 8 individuals who were on extended leave from their custodial supervision order
    in the community
  • 52 individuals who were subject to non-custodial supervision orders
  • 15 individuals who had had their orders under the CMIA revoked by the court.148
  1. 10.140 The study analysed a range of data on the characteristics of the 146 individuals subject to the CMIA, rates of verdicts of not guilty because of mental impairment and the length of detention over time. Of particular interest to the issue being considered by the Commission is the data on the length of detention times in relation to the key transition stages under the review and leave framework.149
Length of detention under custodial supervision order before extended leave
  1. 10.141 There were 41 participants who had been granted extended leave under a custodial supervision order.
  2. 10.142 Overall, the average detention length before a grant of extended leave under a custodial supervision order was 7.88 years. The median length of detention was 7.05 years—meaning that half of the 41 participants were granted extended leave by the time 7.05 years had elapsed. The minimum period of detention was under one year (0.60 years)
    and the maximum time was 21.07 years.
Length of detention under custodial supervision order before variation to a
non-custodial supervision order
  1. 10.143 There were 24 participants who had their custodial supervision orders varied to a
    non-custodial supervision order.
  2. 10.144 The average detention length before a variation of a custodial supervision order to a
    non-custodial supervision order was 11.89 years. The median duration of detention before variation was 10.16—meaning 12 participants had their order varied within approximately 10 years. The minimum period of detention before variation was 4.71 years and the maximum period was 25.53 years.
Length of detention before revocation of a non-custodial supervision order
  1. 10.145 There were 15 participants who had had their order revoked by the close of the study.150
  2. 10.146 The average length of detention before revocation of a supervision order (and thus release from the regime) across the 15 people who had their orders revoked was 10.09 years.
    The median duration was 9.01 years—meaning that half of participants had had their order revoked after nine years. The minimum length of time before revocation was
    2.94 years and the maximum time was 22.18 years.
  3. 10.147 Eleven of these 15 participants had been found not guilty of murder because of mental impairment. All 15 participants whose orders were revoked were released prior to the expiration of their nominal term. Nine of the participants found not guilty of murder because of mental impairment who remained under detention at the end of the study were being detained beyond the expiration of the nominal term.151
Length of detention for people with an intellectual disability
  1. 10.148 Of the 10 participants who had an intellectual disability and were supervised by the Department of Human Services, none had their orders revoked and four had no change
    in legal status by a grant of extended leave or variation to a non-custodial supervision order. Of these four people, three had been detained for over 10 years and two for more than 15 years.152

The Commission’s conclusion

Replacement of nominal term system with a new system of five-year
‘progress reviews’
  1. 10.149 The Commission agrees with the majority view in submissions and consultations that
    the CMIA provisions on the nominal term require change. There are four key reasons why another method of setting the term before a major review is required.
Reasons for change
  1. 10.150 First, as raised in submissions and consultations, the nominal term is not reflective of the actual period of supervision a supervised person generally requires. Data on the detention times of people who were subject to the CMIA up to 2006 suggests that periods of detention vary vastly in individual cases. There are many cases where people are detained for significantly shorter or significantly longer periods than indicated by the nominal term. The particular period of supervision required in a case is dependent on the individual circumstances of the person, including the particular nature of their underlying mental condition and the person’s response to treatment or services. The seriousness of the offence does not and should not correlate with the time a person should be supervised and, by extension, the point at which their order should be subject to a major review. A person involved in a less serious offence with a more serious mental condition could require a longer period of supervision than a person who is involved in a more serious offence, but who has a mental condition that is less severe.
  2. 10.151 Second, there is a clear lack of understanding about the implications of a nominal term. There is often a misconception among supervised people, lawyers, victims, family members and the community that it relates to the period of detention, rather than an indication of when the supervised person is entitled to a major review.

 

  1. 10.152 Third, it is inappropriate to link the nominal term to the maximum penalty of an offence. One of the main aims of the CMIA was to create a specialised pathway that did not overlap with the ordinary criminal justice system. The nominal term is one of the few instances where the CMIA preserves an inappropriate connection with the criminal
    justice system.
  2. 10.153 Finally, the Commission agrees with the view that nominal terms fail to meet the very aim they are designed to achieve. A major review after 25 years (the nominal term for murder), for example, is not an adequate safeguard against arbitrary detention or the supervised person becoming ‘lost in the system’.
The new approach proposed
  1. 10.154 The Commission’s view is that the provisions in the CMIA in relation to nominal terms should be repealed and that in their place a new system be legislatively provided.
    The new system should:
  • develop an approach that is reflective of the nature of supervision orders under
    the CMIA
  • promote transparency and increase understanding of the nature of supervision
    orders for victims of crime and people subject to supervision orders and their
    family members
  • ensure that reviews are not linked to a criminal penalty but based on an approach
    that reflects the CMIA principle of least restriction, the principle of gradual integration and the CMIA’s therapeutic focus
  • ensure that reviews are an effective safeguard against arbitrary detention and
    avoid any unreasonable delay in a supervised person’s progression through the supervision regime.
  1. 10.155 On balance, the Commission has concluded that ‘major reviews’ of orders should occur more frequently under a clear and more transparent system of review. The Commission recommends a new type of review in place of a ‘major review’ that currently relies on the nominal term imposed based on the offence. The Commission recommends that
    ‘progress reviews’ be conducted every five years for both custodial supervision orders
    and non-custodial supervision orders. The progress review should occur every five years, regardless of whether there has been a separate variation of the order before the end of the five years. In line with the current law, the Commission does not recommend that a custodial supervision order be varied unless a 12-month period of extended leave has been completed, to preserve the principle of gradual reintegration.
  2. 10.156 In selecting this period, the Commission has been guided by feedback in the Commission’s roundtable on the CMIA and the higher courts and advice from the advisory committee that forensic patients tend to show signs of recovery from a mental illness within the first three to five years of being placed under supervision.153 A five-year term was also thought to be suitable for people with an intellectual disability who may show signs of improvement in behaviour or functioning after that period.154 The Commission considers that a ‘progress review’ every five years is consistent with CMIA principles—it ensures that the point at which a person should be released can be identified more precisely and protects against arbitrary detention. A five-year progress review will also reflect what occurs in reality under the operation of the CMIA as illustrated by the data discussed
    on detention rates.

 

  1. 10.157 A ‘progress review’ every five years will also promote transparency in CMIA processes by ensuring that the implications of a supervision order are clear to supervised people, lawyers, victims, family members and the community.
  2. 10.158 The term ‘progress review’ will be more easily understood than ‘major review’. Further, the five-year intervals negate the need to use the phrase ‘nominal term’, which many people find confusing. The phrase ‘nominal term’ is used in the CMIA because there are multiple terms prescribed in the legislation that vary based on the offence. With a standard five-year term, it will be unnecessary to define the term with a specific name.155 The introduction of a progress review in place of a nominal term will avoid the incorrect reference to the nominal term to describe the ‘length’ of the order and instead place the proper emphasis on
    the indefinite length of the term for supervision.
  3. 10.159 These recommendations will ensure that supervised people and their family members will be more aware of what to expect when a supervision order is imposed. It will also provide victims with a more accurate understanding of the nature of supervision orders and clarity as to the extent of the consequences of a finding under the CMIA. The recommendations will also enhance the ability of lawyers to provide accurate legal advice on the decision to proceed down the CMIA pathway.
  4. 10.160 Finally, the Commission considers that its recommendations will ensure that the community has a more accurate understanding of the nature of the regime that follows the making of a supervision order. Nominal terms have been confused for a ‘sentence’ instead of a term related to the major review period. This in turn can lead to people subject to the CMIA being thought of as criminally responsible, for example, by being labelled as ‘killers’ in the media.156 In the Commission’s view, it is important that the provisions in the CMIA are as clear as possible to avoid any confusion in the community about the consequences of a finding under the CMIA.

Recommendation

84 The provisions in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) relating to nominal terms in the higher courts should be repealed, and replaced by provisions to the effect that:

(a) a supervision order is for an indefinite term and that the matter is
to be brought back to the court at the end of every five years for a
‘progress review’

(b) the court must set a term of five years before the first progress review of a supervision order to run from the day the person was first made subject to the supervision order, and

(c) the court that made the supervision order must conduct the first progress review of the order before the end of the five-year term
and thereafter at intervals not exceeding five years for the duration
of the order.

 

Presumptions that apply at each decision-making stage

  1. 10.161 The presumptions that apply in decision making are currently not consistent throughout the CMIA. Appendix F sets out the relevant presumptions that apply at each decision-making stage of the current review system under the CMIA.
  2. 10.162 In major reviews, there is a presumption that the court must vary a custodial supervision order to a non-custodial supervision order unless the court is satisfied on the evidence available that the safety of the person subject to the supervision order or members of the public will be seriously endangered as a result of reducing the supervision status of the person.157 This presumption is advantageous to the person subject to a supervision order. However, it stands in contrast with the presumption that applies to varying orders when an application is made. In this case, the presumption is in favour of keeping the person on the custodial supervision order. The court must not vary a custodial supervision order to a non-custodial supervision order unless satisfied that the safety of the person subject to the supervision order or members of the public will not be seriously endangered.158
  3. 10.163 In extended leave matters, there is no presumption either way. The court may grant an application of extended leave if satisfied that the safety of the forensic patient or forensic resident will not be seriously endangered because of the extended leave.159
  4. 10.164 The existence of different presumptions that apply at various stages of the decision-making process prompted the Commission to examine in the consultation paper why these differences exist and how they operate in practice at different stages of review.

Views in submissions and consultations

  1. 10.165 There was some support for a presumption at every review that the supervised person will be transferred to a less restrictive order.160 Forensicare submitted that there should be a presumption that a non-custodial supervision order be revoked at a major review. This presumption currently only applies to custodial supervision orders. The Criminal Bar Association submitted that the current presumption that the court must not vary
    a custodial supervision order to a non-custodial supervision order during the nominal
    term suggests a punitive approach rather than a protective approach based on the person’s progress or risk.161
  2. 10.166 At the Commission’s roundtable on the higher courts, participants identified reasons to support a presumption that supervision will be reduced unless it is positively demonstrated that the existing level of supervision is necessary for the safety of the community. These were:
  • The onus should be on the state to provide positive evidence that justifies the continued detention or restriction of the person, rather than the reverse position where the person is required to provide evidence that they should no longer be detained or restricted.
  • At a practical level, it is harder for the supervised person to effectively prove the absence of risk to the community than for the state to provide evidence in support
    of the presence of risk to the community.
  • Making the presumption more favourable to the transfer to a less restrictive option will better promote the progress of supervised people through the system, and in particular, people with an intellectual disability. There is a significant inertia in the system and a tendency to be on supervision orders for too long.162

 

  1. 10.167 One participant in the roundtable on the CMIA in the higher courts noted that the jump from a custodial supervision order to extended leave was a large one and there should not be a presumption that a person on a custodial supervision order should obtain extended leave. However, it was also noted that it is rare for people to apply for extended leave without having already been on unescorted leave in the community. Other participants also pointed to other safeguards including:
  • The decision to grant extended leave is made by the court.
  • An application for leave relies on the support of the treating team.
  • Victoria Legal Aid’s grant of legal assistance depends on the benefit which a grant might give to a person and their prospects of success, which limits frivolous or unmeritorious applications being made to the court.163

The Commission’s conclusion

  1. 10.168 In almost all stages of the current review process the onus is on the supervised person to demonstrate that the level of supervision should be reduced. Given that supervised people have not been found to be criminally responsible through the usual criminal process, the Commission agrees with views that the state should be required to justify their continued indefinite detention.
  2. 10.169 The Commission considers that the current presumptions contribute to the slowing of the progression of a supervised person through the CMIA system in a way that is inconsistent with the principle of least restriction. In the Commission’s view the presumptions in the CMIA should ensure that restrictions on the supervised person’s freedom and personal autonomy be kept to the minimum consistent with the safety of the community.
  3. 10.170 To strike this balance, the Commission recommends a new set of presumptions under
    the ‘progress review’ framework proposed to replace nominal terms and major reviews
    as follows:
  • a neutral objective assessment, with no presumption that the level of supervision
    be reduced, at the first progress review (at five years)
  • a presumption, at subsequent progress reviews, that the level of supervision for both custodial supervision orders and non-custodial supervision orders be reduced, unless the court considers that to do so would pose an unacceptable risk of causing physical or psychological harm to the community
  • if the supervised person applies for a variation of a custodial supervision order before the first progress review at five years, there should be a presumption that the court must not reduce the level of supervision, unless the court is satisfied that there is no unacceptable risk of causing physical or psychological harm to the community
  • a neutral objective assessment, with no presumption that the level of supervision be reduced, if the supervised person applies for a variation of a non-custodial supervision order before the first progress review at five years
  • a neutral objective assessment, with no presumption that the level of supervision be reduced, if the supervised person applies for a variation of the order following the first progress review, during a period between progress reviews.
  1. 10.171 The presumptions rely on an assessment of whether the person poses an ‘unacceptable risk of causing physical or psychological harm’. The Commission recommends replacing the ‘endangerment test’ under the CMIA with this test, discussed in further detail later
    in this chapter.

 

  1. 10.172 Despite the presumption that applies at the first progress review, the Commission recommends retaining the requirement that a custodial supervision order must not be varied unless a 12-month period of extended leave has been completed, to preserve
    the system of gradual reintegration (see also Recommendation 86).
  2. 10.173 The Commission considers that the recommendations to introduce progress reviews and to vary the presumptions that apply in the CMIA are consistent with the purposes of the CMIA, including community protection. In addition, there are protective factors that exist within the system, as identified in consultations at [10.167].

Recommendation

85 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to introduce the following presumptions to apply at progress reviews of supervision orders:

(a) the court must not vary a custodial supervision order to a non-custodial supervision order before the first progress review unless satisfied on the evidence available that the person would not pose an unacceptable risk of causing physical or psychological harm to another person or other people generally as a result of the variation

(b) at the second progress review of a custodial supervision order and progress reviews thereafter, the court must vary the custodial supervision order to a non-custodial supervision order unless satisfied on the evidence available that the person would pose an unacceptable risk of causing physical or psychological harm to another person or other people generally as a result of the variation, and

(c) at the second progress review of a non-custodial supervision order
and progress reviews thereafter, the court must revoke the
non-custodial supervision order unless satisfied on the evidence
available that the person would pose an unacceptable risk of causing physical or psychological harm to another person or other people generally as a result of the revocation of the order.

 

Variation of a custodial supervision order to a non-custodial supervision order

  1. 10.174 Forensicare’s submission highlighted the need to clarify whether at a major review a custodial supervision order can be varied to a non-custodial supervision order without a period of extended leave. Forensicare noted that section 35(3)(a)(i) of the CMIA taken at face value allows for the court to vary a custodial supervision order to a non-custodial supervision order directly at a major review, without an intervening period of extended leave. It was submitted that this contradicts section 32(3)(a), which provides that a court must not vary a custodial supervision order to a non-custodial supervision order unless
    the supervised person has completed a period of at least 12 months extended leave.
  2. 10.175 In the Commission’s view the inconsistency between s 35(3)(a)(i) and section 32(3)(a) should be resolved to avoid any confusion and provide greater clarity in the CMIA. The Commission’s firm view is that a custodial supervision order should not be varied to a non-custodial supervision order unless a period of extended leave has been completed. This is consistent with the CMIA’s principle of gradual reintegration.

 

Recommendation

86 Section 35(3)(a)(i) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to clarify that a custodial supervision order should not be varied to a non-custodial supervision order at a progress review unless the forensic patient or forensic resident has completed a period of at least 12 months extended leave.

 

  1. 10.176 The proposed processes under Recommendations 84 and 85 are illustrated below in Figure 7, which shows the pathway for a person on a custodial supervision order and Figure 8, which shows the pathway for a person on a non-custodial supervision order.

 

Figure 7: Pathway for a person on a custodial supervision order

Figure 7: Pathway for a supervised person on a custodial supervision order 

 

 Figure 8: Pathway for a person on a non-custodial supervision order

Figure 8: Pathway for a supervised person on a non-custodial supervision order

Frequency of reviews or further reviews

  1. 10.177 The CMIA provides judges with the flexibility to decide how often to review, or further review, a person’s supervision order.164 The CMIA only specifies the timing of the major review.165 Some judges may conduct annual reviews, while others set shorter or longer periods. In the consultation paper, the Commission asked whether the CMIA should be more prescriptive in this area.

Views in submissions and consultations

  1. 10.178 There was some support for requiring the automatic review of supervision orders every two years, as proposed in Recommendation 431 of the Commission’s Guardianship
    Final Report.166
  2. 10.179 However, others noted that frequent reviews were not necessarily a good option. Frequent
    reviews can be stressful for patients and provide them with false hope when the outcome is likely to be a confirmation of the existing order.167 Further, the potential outcome could be a source of anxiety to victims of the offences.168 It is also very resource-intensive to hold reviews.169

The Commission’s conclusion

  1. 10.180 In the Commission’s view, flexible reviews on application by the accused should be maintained. Having flexible provisions on the frequency of reviews allows judges to set the timing of reviews to best suit the individual case. The Commission considers flexible reviews provide a more individualised approach than automatic reviews. As the Victorian Equal Opportunity and Human Rights Commission noted, these reviews are important
    in light of the very different needs and requirements of the individuals subject to supervision under the CMIA.170

 

  1. 10.181 The Commission considers that more frequent reviews, where there is no clear reason for the review, are not necessarily preferable. As suggested in submissions and consultations, review hearings can be traumatic and counter-therapeutic for the person subject to the supervision order, their family members and victims.
  2. 10.182 Further, reviews require substantial resources, including:
  • court time
  • legal representation for each party involved
  • time to provide information to the court on the progress of the person subject to
    the supervision order, including the time it takes to prepare reports and give evidence in court.
  1. 10.183 The Commission’s view is that the disadvantages of automatic reviews (in addition to the progress reviews in Recommendation 84) outweigh their benefits.
  2. 10.184 As Forensicare submitted, the court receives an annual report detailing the supervised person’s treatment, prognosis and future treatment plan. Both the Office of Public Prosecutions and Forensicare also noted that applications to vary a supervision order or for extended leave can be made at any time.171 The Commission considers that these factors would ensure that the progress of supervised people receives adequate oversight while preserving the flexibility that the CMIA currently gives to courts in determining review periods.
  3. 10.185 Therefore, no other changes are recommended to the frequency of reviews or
    further reviews.

Factors that guide decision making in review, release
and leave decisions

  1. 10.186 In this section the Commission makes recommendations to change or add to the factors that guide decision making in review, release and leave decisions by the court and the Forensic Leave Panel.
  2. 10.187 Appendix G contains versions of the relevant provisions if the Commission’s recommendations were to be adopted.

Current principles and factors under the CMIA

  1. 10.188 The decision-making criteria in the CMIA attempt to strike a balance between
    the supervised person’s freedom and the safety of the community. As McSherry
    has observed:

The problem really lies in drawing up appropriate criteria which will lead to the detention of those who really may do harm in the future, whilst allowing for the absolute discharge of those who do not pose a risk to the public.172

  1. 10.189 Section 39 of the CMIA requires that in making, varying or revoking a supervision order or granting or revoking extended leave, the court must apply the principle that ‘restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community’.173

 

  1. 10.190 Under section 40(1) of the CMIA, the court must have regard to whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of their mental impairment. In other sections of the CMIA, for example in extended leave applications, the court may grant extended leave if it is satisfied that
    the safety of the forensic patient or forensic resident, or members of the public will not
    be seriously endangered as a result of the forensic patient or forensic resident’s extended leave.174 When the CMIA requires an assessment of whether the person is ‘likely to endanger’ themselves or another person, or whether their safety or safety of members of the public will be ‘seriously endangered’, the Commission refers to this as the ‘endangerment test’.
  2. 10.191 In addition, under section 40 the court must have regard to:
  • the nature of the person’s mental impairment or other condition or disability
  • the relationship between the impairment, condition or disability and the
    offending conduct
  • the need to protect people from such danger
  • whether there are adequate resources available for the treatment and support
    of the person in the community
  • any other matters the court thinks relevant.175
  1. 10.192 Reports play an important role in the court’s decision making. The court must obtain
    and consider reports from a range of people involved in the supervision of the person. These include medical practitioners, psychologists and case managers involved in supervising the person. Victims of the offence and family members of the supervised person may also make a report to the court.176
  2. 10.193 In this section, the Commission considers the factors that guide decision making in
    the review, release and leave framework with a focus on sections 39 and 40 of the
    CMIA. This includes decisions made by the courts and the Forensic Leave Panel.
    The Commission’s recommendations aim to:
  • ensure that decision-making factors operate justly and consistently with the principles that underlie the CMIA
  • support the gradual reintegration of supervised people into the community where they do not pose an unacceptable risk to the community
  • bring decision-making factors into line with modern risk assessment
  • ensure that in addition to judicial decisions, other decisions made in relation to supervised people are subject to the oversight of the CMIA.

The endangerment test applied by decision makers

  1. 10.194 The CMIA decision-making framework permits the detention of a person based on their ‘dangerousness’ justified on the basis of community protection. A significant part of the decision to make, vary or revoke a supervision order or to grant extended leave hinges on the court’s assessment of the dangerousness of the person subject to the supervision order. Other decision makers under the CMIA also rely on the endangerment test.
    These are detailed in Appendix F and include, for example:
  • the authorised psychiatrist or Secretary to the Department of Human Services in granting applications for special leave
  • the Forensic Leave Panel in granting applications for on-ground leave or limited
    off-ground leave
  • the Chief Psychiatrist or the Secretary to the Department of Human Services in suspending a leave of absence
  • a member of the police force or an ambulance officer when exercising an emergency power of apprehension.
  1. 10.195 When making, varying or revoking an order, the court must consider whether the person is ‘likely to endanger’ themselves or other people if released.177 As the Court of Appeal noted in NOM v DPP (‘NOM’),178 section 40(1) of the CMIA has a discretionary character with no particular factor being a decisive consideration.179
  2. 10.196 In other decisions made under the CMIA, for example, in a major review of a custodial supervision order, the decision is based on whether the decision maker is satisfied that the safety of the person or other members of the public will or will not be ‘seriously endangered’. As the Court of Appeal held in NOM, ‘likely to endanger’ is about the probability of a risk materialising unlike ‘serious endangerment’ which encompasses
    the gravity of the possible harm in the event that the risk eventuates.180
  3. 10.197 In the consultation paper, the Commission asked whether the court should continue
    to consider the ‘dangerousness’ of the person subject to the supervision order.

Views in submissions and consultations

  1. 10.198 There was general support for a refinement of the test for endangerment. Forensicare,
    for example, submitted that the current test is ‘open-ended and ambiguous, covering both criminal and non-criminal conduct’.181
  2. 10.199 Submissions identified the need to clarify the threshold of endangerment that applies
    in the CMIA.182
  3. 10.200 There was also support for clarifying the meaning of ‘endangerment’ and ensuring that the likelihood of endangerment is couched in terms of serious or significant risk to justify ongoing preventative detention.183 The Criminal Bar Association observed:

In some cases, our members have had to submit, sometimes strenuously, that some
risk to the safety of the community is acceptable. … This distinction should be made
clear in the Act.

 

  1. 10.201 The Criminal Bar Association noted that ‘unacceptable risk’ is a term that is being increasingly used in Victoria.184
  2. 10.202 Some participants at the Commission’s roundtable on the higher courts were of the view that the gravity of the harm in the test should be more clearly expressed in terms of serious harm. For example, a person should not be indefinitely detained if they are at risk of committing minor thefts. However, it was noted that where a person was a repeat offender it may be important to protect the community from these less serious crimes. Participants at the roundtable also suggested that the different references to ‘endangerment’ throughout the CMIA should be clarified.185

The Commission’s conclusion

  1. 10.203 The use of ‘likely to endanger’ in some parts of the CMIA and ‘seriously endanger’ in other parts implies that different thresholds trigger the intervention of decision makers at different stages of the process. In the Commission’s view there is no reason for a different threshold to apply depending on the decision maker or the decision being made.
  2. 10.204 The Commission considers that in each decision, whether it is a grant of special leave,
    or in exercising the emergency power of apprehension, the common issue for the
    decision maker concerns the risk the supervised person poses to the community and
    the level of supervision that should correspond to that risk. Whether the decision involves increasing the level of supervision or decreasing it, the level of risk consistent with the safety of the community is the same. Therefore the question for the decision maker on the level of supervision necessary to keep the risk at that acceptable level should also be the same. The Commission recommends that the threshold for the ‘danger’ or risk the supervised person poses should be the same throughout the CMIA. This will also
    address any confusion caused because of the differing thresholds and provide greater clarity in the law.
  3. 10.205 The Commission also agrees that the endangerment test needs to be changed so that there is more clarity on the degree of risk and the gravity of the harm it encompasses. Assessing ‘dangerousness’ is currently open to much subjective interpretation and the interpretation of the term ‘serious endangerment’ has been ‘somewhat elastic’.186
  4. 10.206 The Commission therefore recommends that the CMIA moves away from the endangerment test and instead relies on a test that is based on an ‘unacceptable risk
    of physical or psychological harm’.
Unacceptable risk
  1. 10.207 The Commission considers that an ‘unacceptable risk’ is an appropriate measure of the likelihood of the risk the supervised person may pose. First, an unacceptable risk indicates that there is some level of risk that will be acceptable and will counteract any assumption that a person must prove that they pose no risk before their level of supervision can be reduced.187 In relation to a refusal of bail, for example, which relies on a similar measure
    of risk, it is not enough that there is ‘a tenuous suspicion or fear of the worst possibility if the offender is released’.
    188 This recognises the difficulty in demonstrating that a supervised person will not pose a risk at all following a change in the level of supervision.189
    As Freckelton observes, having to satisfy a ‘negative’ or prove that something will not happen, is difficult.190
  2. 10.208 Second, a test based on unacceptable risk recognises that assessing risk requires a level of subjective judgment by the decision maker on the level of risk that society is prepared to accept when balanced against the supervised person’s right to liberty and freedom.
    As the Sentencing Advisory Council observed in its final report on High-Risk Offenders: Post-Sentence Supervision and Detention, in addition to expert evidence, it involves a social judgment about what risks are acceptable and what responses to risks are appropriate.191 The Sentencing Advisory Council referred to the case of Attorney-General (Qld) v Sutherland192where the Queensland Supreme Court observed:

the assessment of what level of risk is unacceptable, or alternatively put, what order is necessary to ensure adequate protection of the community, is not a matter for psychiatric opinion. It is a matter for judicial determination, requiring a value judgment as to what risk should be accepted against the serious alternative of deprivation of a person’s liberty.193

  1. 10.209 In the context of bail decisions and the post-sentence detention of sex offenders, courts have avoided tying ‘unacceptable risk’ to a particular likelihood of risk, for example, a risk that is ‘more likely than not’ or ‘more probable than not’.194 The Commission considers that tying the level of risk to a particular level or probability is unhelpful and difficult to apply in practice. Further, the Commission considers that a supervised person’s risk should be considered in an individualised and holistic manner, for example, having regard to the measures in place to manage their risk. By being less prescriptive, a test based on an ‘unacceptable risk’ provides the flexibility to consider whether there is a sufficient likelihood of the occurrence of the risk which, having regard to all relevant circumstances, makes it unacceptable.195
  2. 10.210 Third, while it incorporates some level of social judgment, a test based on an unacceptable risk is more in line with modern risk assessment than a test based on dangerousness. As observed by Ogloff and Davis:

There have been many conceptual and scientific developments in the field of violence risk assessment in the past decade. Once thought of as ‘predicting dangerousness’ and requiring clinicians to make dichotomous predictions of ‘dangerous behaviour’ at some future point, contemporary risk assessment is more likely to recognise that prevention and management of risk for violence are primary. Rather than being seen as a stable characteristic, the move from predicting ‘dangerousness’ to predicting risk for violence has seen the emergence of risk approaches and instruments that incorporate both static and dynamic variable.196

  1. 10.211 The Commission considers that the recommended test will encourage decision makers to engage in more nuanced assessments of a supervised person’s risk, rather than a ‘black and white’ assessment of whether a person is ‘dangerous’ or ‘not dangerous’. In MacBain v Director of Public Prosecutions,197 for example, the court held that risks could be reduced to an acceptable level with the imposition of particular bail conditions. Participants at the Commission’s roundtable on the CMIA and the higher courts noted the importance of considering how any risk the supervised person poses to the community is moderated by the particular conditions that would be attached to the supervision order and any other protective factors that would be in place.
Type of harm
  1. 10.212 In relation to the type of harm, the Commission recommends a test based on physical or psychological harm. The CMIA currently does not define what ‘endangerment’ means, for example, whether it requires the endangerment to be physical or psychological, or whether it requires the risk that a violent offence will be committed (as opposed to a
    non-violent offence). The Commission considers that specifying the type of harm in the test will provide more clarity for decisions makers and experts when applying the test.
    The Bail Act 1977 (Vic), for example, that relies on the test of ‘unacceptable risk’, allows the court to consider whether the person would commit an offence while on bail.198
    The Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic) provides that the court may make a supervision order if satisfied that the eligible offender poses an unacceptable risk of committing a relevant offence.199
  2. 10.213 In the Commission’s view, ‘physical or psychological harm’ is the type of harm that justifies the preventive detention of people found not guilty because of mental impairment or found to have committed the offence charged following a finding of unfitness to stand trial. The Commission considers that conduct that does not cause physical or psychological harm to a person, such as relatively minor theft, does not warrant the continued detention of the person to the level required under the CMIA.
    The Commission also considers that this type of harm would be suitable for application
    in the summary jurisdiction where lower level offending such as driving offences may pose an unacceptable risk of physical or psychological harm.
  3. 10.214 Case law indicates that ‘unacceptable risk’ already includes an assessment of the gravity of the harm that may eventuate. The Commission does not recommend defining the gravity of the harm with greater precision, for example, in terms of serious physical or psychological harm. The ‘unacceptable risk’ test already implicitly considers the level of harm that would be ‘unacceptable’.
  4. 10.215 On a broader level, the Commission considers that a test based on an ‘unacceptable risk of physical or psychological harm’ is more consistent with the principles underlying the CMIA, and in particular, ensuring that supervision continues only for so long as it is necessary to address the level of risk that is considered to be unacceptable.

 

Recommendation

87 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require:

(a) When making decisions, the relevant decision maker to:

(i) for section 40(1)(c), consider whether the person would pose an unacceptable risk of causing physical or psychological harm to another person or other people generally because of his or her mental impairment

(ii) for sections 50(3)(b), 54(2)(b), 54(3)(b), 57(2) and Schedule 3 clause 4, be satisfied that the person would not pose an unacceptable risk
of causing physical or psychological harm to another person or other people generally

(iii) for sections 55(1), 58(1), 58(4)(a) and 73F(5) be satisfied that
the person would pose an unacceptable risk of causing physical
or psychological harm to another person or other people
generally, and

(iv) for section 30(1)(b), have a reasonable belief that the person
would pose an unacceptable risk of causing physical or psychological harm to another person or other people generally.

(b) The court under section 40(1)(d) to consider the need to protect people from such risk.

 

Relevant factors in the decision to unconditionally release or declare a person
liable to supervision

  1. 10.216 Under the CMIA, following a finding that the accused committed the offence charged (after being found unfit to stand trial) or a finding of not guilty because of mental impairment, the court may declare the person liable to supervision or unconditionally release them. The court must consider matters prior to making this decision, such as
    a report on the person’s mental condition. These are discussed in further detail in
    Chapter 9.
  2. 10.217 However, the court is not required to consider the risk the person poses to the community when making this decision. In the Commission’s view the decision to unconditionally release a person into the community should involve a consideration of their risk, consistent with the principle of community safety that runs through the CMIA. Further, as Forensicare highlighted in its submission, once a person is made liable to supervision, the option of unconditional release is no longer available.200 Consistent with the principle of least restriction, a person should be given the earliest opportunity for release where they do not pose an unacceptable risk to the community. The Commission therefore recommends that this factor should be considered in the decision to declare a person liable to supervision, in addition to the decisions following the declaration.201

 

  1. 10.218 Section 40(2) of the CMIA (which contains a presumption against unconditional release) and this recommendation should not apply to the Children’s Court where the
    Commission has recommended a presumption in favour of unconditional release
    (Recommendation 48(b)).

Recommendation

88 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require that, in deciding whether to declare the person liable to supervision or to unconditionally release the person, the court is to have regard to whether the person poses an unacceptable risk of causing physical or psychological harm to another person or other people generally.

 

Role of the offence in the assessment of risk

  1. 10.219 The seriousness of the offence against which a finding is made is not included in the matters that the court is required to take into account. However, the court is required to consider the relationship between the impairment, condition or disability and the offending conduct.202
  2. 10.220 In the consultation paper, the Commission observed that relying on matters that are
    traditionally sentencing principles (for example, the principle of proportionality reflected in the consideration of ‘seriousness of the offence’) may inadvertently import a punitive element to decision making and constrain the ability of the court to make a true assessment of future risk.203 The Commission sought views on the appropriate role of the seriousness of the offence in the making, varying and revocation of orders and applications of leave.

Views in submissions and consultations

  1. 10.221 Submissions that addressed this issue and people consulted viewed the seriousness of the offence as relevant in assessing risk.204 The Criminal Bar Association said that it was appropriate that the CMIA contemplates the offence (and therefore its seriousness) and
    its connection to the accused’s mental condition.205

The Commission’s conclusion

  1. 10.222 The Commission agrees with the views expressed in the majority of submissions and consultations on this issue. As noted by Carroll, Lyall and Forrester:

Given that past behaviour is the single best predictor of future behaviour, it is actually understandable and appropriate that the index offence exerts an influence on risk management decisions. The challenge for clinicians is to ensure that this does not occur in a facile manner, whereby, for example, certain sorts of offence necessarily result in certain lengths of detention [citation omitted].206

 

  1. 10.223 A 2010 study of people found not guilty because of mental impairment in Victoria found that the seriousness of the offence tends to be a recurring consideration when courts make and review supervision orders under the CMIA. The study suggested that offence seriousness ‘remains at the forefront of the risk assessment process’, especially when courts are making the initial order.207 The study analysed the detention times of 146 participants who had been found not guilty because of mental impairment and found that shorter periods of detention were associated with less serious offences. For example, participants who had been found not guilty of murder because of mental impairment
    had an average total time under supervision of 12.81 years, compared with 6.87 years for rape and sexual assault offences and 2.27 years for property offences, such as robbery,
    theft and fraud.208
  2. 10.224 Using more complex regression analysis of the detention times according to the
    offence, the study concluded that while the seriousness of the offence appeared to be at the forefront of the risk assessment process at the dispositional stage, later decision-making stages appeared to be informed by a ‘more comprehensive examination of dangerousness which takes account of a range of risk factors peculiar to each individual’.209 The study therefore concluded that courts in this jurisdiction are not using an ‘informal tariff based on the seriousness of the … offence to determine the length of detention’ of people found not guilty because of mental impairment following the making of a supervision order.210
  3. 10.225 This supports the proposition that even though the seriousness of the offence plays a role in the risk assessment that may be conducted in decision making, courts are not importing a punitive element into their decisions, which is consistent with the rationale behind the CMIA.
  4. 10.226 The Commission therefore does not recommend any change to the role of the offence
    in decisions concerning supervised people.

Relevance of ‘risk to self’ in the risk assessment

  1. 10.227 The CMIA currently requires courts and decision makers to consider the likelihood of
    the supervised person endangering themselves, in addition to the likelihood of the
    person endangering other people. In the consultation paper the Commission asked for views on whether the court should continue to consider the likelihood of the person
    endangering themselves.

Views in submissions and consultations

  1. 10.228 There was nearly unanimous support from those who addressed the issue for removing the requirement that the court consider the supervised person’s risk to themselves.211
    It was thought that this risk could be addressed through other mechanisms such as the civil mental health and disability systems and that a consideration of a person’s ‘risk to self’ should not be a factor in reviewing orders. The Criminal Bar Association submitted that the factor should be given less weight, but not necessarily disregarded entirely.212
  2. 10.229 Participants at the Commission’s roundtable on the higher courts also supported removing this requirement. One participant provided an example of a person with an intellectual disability who was held on a CMIA order so that he would not run out on
    the road and hurt himself.213

The Commission’s conclusion

  1. 10.230 The views expressed in submissions and consultations were based on practices under the Mental Health Act 1986 (Vic) (‘MHA 1986’). The Commission’s conclusions have drawn on this, as well as the provisions of the Mental Health Act 2014 (Vic) (‘MHA 2014’),
    which replaced the MHA 1986 on 1 July 2014.
  2. 10.231 The Commission agrees with the majority view in submissions and consultations on this issue. As the New South Wales Law Reform Commission noted:

an argument can be made that it is inappropriate to use the coercive apparatus of the criminal justice system (and the associated forensic mental health system) solely for the purpose of preventing an offender, who has not been convicted of a crime, from harming him or herself. This is particularly so in light of the detailed civil legislative and administrative arrangements that exist to care, support and supervise people in the general community …214

  1. 10.232 The main justification for preventive detention, and the imposition of a CMIA order more specifically, is for the protection of the community. In the Commission’s view, where the person does not pose an unacceptable risk to the community, the justification for CMIA intervention ceases to exist. If a person is at risk of harming themselves, and not other people in the community, this risk may be more properly managed within the civil system instead of the CMIA. Compulsory orders under the MHA 2014215 operate within a different framework to CMIA orders, although they also aim to prevent harm to others, as well as harm caused to the person who is subject to the order. For example, the MHA 1986 provided that a person may be involuntarily treated if ‘necessary for his or her health or safety’ or ‘for the protection of members of the public’.216 Orders for compulsory treatment under the MHA 2014 have equal regard to the risk posed to others and the risk posed to themselves, as well as separately considering the need to prevent serious deterioration in the person’s mental health and the need to use the least restrictive treatment.217 If the only risk posed by a person who has become subject to the CMIA is to themselves, the Commission’s view is that supervision should not be provided by the CMIA but via less restrictive options under the civil mental health and disability regimes.
  2. 10.233 The Commission’s recommendations in Chapter 2 are designed to increase the linkages between the criminal system and civil mental health and disability systems.
  3. 10.234 The Commission also notes that in addition to the civil system, a person’s risk to themselves could be managed within the clinical relationship with their treating team, and as part of the requirement in the CMIA that the court have regard to the person’s mental impairment or other condition or disability.218
  4. 10.235 The Commission considers that this approach, consistent with the principle of least restriction, ensures that supervision under the CMIA occurs only if it is necessary to address a person’s risk to the community and continues only for so long as it is necessary to achieve this aim.

 

Recommendation

89 References to the danger the person poses to themselves or the person’s safety in sections 40(1)(c), 54(2)(b), 54(3)(b), 55(1), 57(2), 58(1), 58(4)(a), 30(1)(b), 73F(5) and Schedule 3 clause 4 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be removed.

 

Scope of the risk assessment in relation to the mental condition
and behaviour

  1. 10.236 Sections 40(1)(a) and (b) of the CMIA require a court to have regard to the nature of the person’s mental impairment or other condition or disability and its relationship to the offending conduct. Section 40(1)(c) requires a court to make an assessment of the likelihood of the danger that the person poses because of their mental impairment
    (or other condition or disability).

Views in submissions and consultations

  1. 10.237 In submissions and during consultations, concerns were raised regarding the scope of
    this risk assessment with regard to factors other than the underlying mental condition.
  2. 10.238 In particular, a problem was raised about how this risk assessment operated in practice for people subject to non-custodial supervision orders who may have co-occurring problematic behaviours such as alcohol or drug abuse or personality issues (in addition to a mental condition). Although such people may have stabilised for some period of time in relation to their mental condition, their ongoing behavioural issues (which in some cases may not be directly connected to the mental condition which gave rise to the supervision order) make them more likely to breach the conditions of their order and therefore render them more susceptible to variations to more restrictive orders.
  3. 10.239 In this way, the difficulties or inability to comply with the conditions on a non-custodial supervision order (such as not consuming drugs or alcohol) can operate as a barrier to progressing through the stages of supervision. In some cases, it may lead to a regression in the stages of supervision; for example, non-compliance may lead to a variation of a non-custodial supervision order to a custodial supervision order.
  4. 10.240 The particular way in which the CMIA operated for this group was described by DrGrant Lester in a presentation at a seminar at Forensicare as ‘the sting in the tail’ of the
    non-custodial supervision order.219 A submission to the Commission described this
    group of people as being susceptible to periods of extended detention ‘verging on preventative detention’.220
  5. 10.241 Stakeholders suggested that the risk assessment conducted as part of section 40(1) should be specifically referable to the link between a person’s mental condition (such as a mental illness) and the original offending behaviour,221 rather than their risk of engaging in particular behaviour that may constitute a breach of a condition but not meet the standard required under section 40(1)(c) of endangering the community.

 

  1. 10.242 This issue was the subject of discussion at the Commission’s roundtable on the higher courts. Concerns were noted by some participants around the disproportionate consequences for people in this group when there are factors present (which may not have been factors at the time of the offence) that result in a non-custodial supervision order being varied to a custodial supervision order. It was noted that the person can
    then face a very long period of custodial supervision and ‘limitation on their rights’.222
  2. 10.243 Concerns were also noted from a human rights perspective. If a person poses a risk for reasons other than their mental illness, then the justification for treating them differently and subjecting them to detention no longer exists. Reference was made to the
    requirements under a human rights approach for there to be ‘a nexus between the impairment and the risk they pose for special treatment to be justified’.223
  3. 10.244 However, other participants expressed reservations about whether other factors, such as drug or alcohol use or personality disorders, could be disentangled from the mental condition that underpinned the original offence. One participant stressed that under the therapeutic approach inherent in the CMIA, it is ‘difficult to split a person’s problems up’. The participant said:

There is some relationship between drug-taking and illness, trying to break a person down and treat one part as relevant to how the offence occurred is not treating the person as a whole person. We should be trying to assist and bring a therapeutic outcome to the whole person.224

  1. 10.245 Other participants agreed that it could be difficult to discern between offending behaviour or risk that was caused by a mental condition or some other factor. Participants also noted the relationship between drugs or alcohol use and mental illness.225 This point was also made by another stakeholder consulted by the Commission who noted that controls on drug and alcohol use were there to ensure the continued management and stability of the mental condition.226
  2. 10.246 One submission pointed out that introducing a requirement to link risk to the mental condition that led to the supervision order could lead to a small number of high-risk individuals being released from supervision or continuing to reside in the community.227

The Commission’s conclusion

  1. 10.247 The Commission notes the concerns regarding the scope of the risk assessment and how the inclusion of factors other than the underlying mental condition can have adverse results for a particular group of people subject to the CMIA.
  2. 10.248 However, the Commission also notes that the relationships between co-morbid factors, such as drug and alcohol use, personality and behavioural issues are complex and can be difficult to disentangle. An amendment to the CMIA that introduces a requirement to do so could require unrealistic decisions being made about the risk that some people pose.
  3. 10.249 On balance, the Commission does not propose that the legislation attempt to limit the risk assessment solely to the mental condition underlying further offending behaviour
    or breaches of non-custodial supervision orders.

 

  1. 10.250 The Commission considers that some of the problems relating to this group can be more appropriately addressed by increasing the flexibility of the CMIA processes that occur when a non-custodial supervision order is breached. The Commission makes recommendations to this effect in Chapter 11.

Additional factors to guide decision making

  1. 10.251 Aside from the matters in section 40 of the CMIA and the likelihood of danger, decisions in CMIA matters provide further insight into the other factors that play a role in the court’s decision making. These include:
  • The nature of the person’s mental impairment—While this is one of the matters section 40 includes, courts also consider related issues such as the person’s responsiveness to treatment,228 control of any ongoing symptoms229 and the person’s compliance with medical treatment.230
  • The person’s insight—The CMIA does not require the court to consider insight, however, courts often look into the level of insight the person has into their mental illness and into the circumstances of the offence.231
  • The ability to monitor any re-emergence of symptoms232—Courts have considered,
    for example, the ability of the treating team to apprehend the person or suspend leave if necessary.233
  • The views of psychiatrists—The opinions of the supervising clinicians which they present through their reports and by giving evidence in court are influential in the court’s decision making.234
  • A previous downgrading of supervision—Courts consider, for example, development of rapport with treating team,235 tendency to use drugs and alcohol,236 and the willingness of the person to self-report to their area mental health service if
    they relapse.237
  • The likelihood of adequate care in the civil mental health system238—Courts have also considered whether the person could be detained under the MHA 1986239 when deciding whether to vary an order.240
  1. 10.252 In the consultation paper, the Commission sought feedback on whether the CMIA should provide more guidance to the courts on the factors relevant to making, varying and revoking supervision orders and applications for leave.

Links between the CMIA and the civil mental health and disability system

  1. 10.253 An issue that arose in submissions and consultations concerned the interaction between the CMIA system of supervision and the civil system, in particular:
  • whether there should be a greater focus on transitioning supervised people under
    the CMIA to civil orders under the MHA 1986241or the Disability Act 2006 (Vic), or
  • whether powers should be introduced to enable criminal courts to actively transition supervised people under the CMIA to such orders or make such orders.
Views in submissions and consultations
  1. 10.254 Those who did not support a greater emphasis on transitioning supervised people to the civil system expressed the following views:
  • If a person still requires supervision, they should remain under the CMIA system.242
  • In practice, there is already a transition to the civil system for people with a mental illness subject to a non-custodial supervision order. Their day-to-day care lies with
    the area mental health service and not with the forensic system.243
  • There is already sufficient flexibility in the system for a person to be placed on a civil order when their non-custodial supervision order is revoked, even though there is no formal continuum between the CMIA system and the civil system.244
  1. 10.255 Other stakeholders were of the view that the civil system should have a greater interaction with the CMIA regime. They suggested, for example, that the court should consider whether it is appropriate for the person to receive or continue to receive treatment or support under the MHA1986245 or the Disability Act when making and reviewing a supervision order.246 The following views were expressed:
  • Civil involuntary treatment orders247 provide a less restrictive but equally
    effective alternative.248
  • Civil orders are more cost-efficient, as CMIA supervision orders are more expensive
    to monitor.249
  1. 10.256 Victoria Legal Aid suggested that the CMIA provide the court with the power to investigate suitable civil orders and that there be a requirement that courts consider less restrictive options before making a supervision order.250 It provided the Commission with a case study to demonstrate an effective way of relying on the civil system for people who would otherwise be supervised under the CMIA (a modified version is presented):

Case study: Ali

Ali has a low to moderate intellectual disability. Three years ago, Ali engaged in behaviour with a potentially sexual motive with children on two separate occasions.
… police charged Ali with child stealing and attempting to procure an indecent act
with the children.

After the incidents occurred but before he was charged by police, Ali’s disability service provider developed a Behaviour Support Plan for him, in consultation with the Office of Senior Practitioner. This included various behaviour support strategies and restrictive interventions, including supervision at all times in the community.

Ali was assessed as being unfit to be tried. Application was made on behalf of Ali to have the charges withdrawn … It was also submitted that [a non-custodial supervision order] (the most likely order a court could have made) would not have provided any greater supports or risk reduction, and was unnecessarily burdensome in the circumstances – on both Ali and state resources. … prosecutors … agreed to withdraw the charges on the basis that the Behaviour Support Plan was sufficient to manage
any future risk.251

  1. 10.257 Some participants in the Commission’s roundtable on the higher courts viewed the
    civil system as the first point of call in decisions about the supervision a person
    should receive.252
  2. 10.258 However, other participants noted the importance of recognising the differences in the operation of the civil mental health system, where detention times average 11 days in
    an acute unit. These participants were of the view that the civil system is not set up to detain people for the period that most people under the CMIA would need clinically. Further, they noted that many people who require supervision under the CMIA would
    not meet the criteria for involuntary treatment under the civil statutes.253
The Commission’s conclusion
  1. 10.259 In the Commission’s view, CMIA supervision orders should operate in a complementary manner with orders under the civil mental health or disability systems. The imposition of these orders is not mutually exclusive, and the current practice of imposing these orders separately or collectively on people subject to the CMIA, should be recognised in the legislation. As Justice Eames noted in Re Authorised Psychiatrist v TKM254 when considering the appropriateness of orders under the MHA1986255 to address a deterioration of mental health of a supervised person subject to a non-custodial supervision order:

The two legislative enactments do not operate in competition, nor, applied sensibly, should their joint application cause any confusion or inconsistency. In fact, this case demonstrates that intelligent use of support mechanisms (both for the patient and the safety of the community) which are provided under both Acts ensures that the public safety and the welfare of the patient can be ensured whilst at the same time ensuring the proper review mechanisms which are in place under one or other of the Acts (involving either the Mental Health Review Board or the Court, under the respective Acts) will operate so as to ensure that the rights of the patient are not abused.256

  1. 10.260 The Commission recognises that there are limitations to the civil system and that these limitations mean that civil orders will not be suitable for people subject to the CMIA in every case (for example, average detention periods are more limited in the civil system and people subject to the CMIA may not meet the civil criteria for involuntary treatment). Further, people subject to the CMIA who are supervised by the Department of Human Services, may not meet the eligibility criteria for facilities as part of compulsory orders under the Disability Act.
  2. 10.261 However, where orders under the civil system can effectively address the risk a supervised person poses to the community, these orders should be considered and even preferred over CMIA supervision orders. This is consistent with the principle of least restriction. As demonstrated by Victoria Legal Aid’s case study, the civil system can provide a less restrictive alternative than the CMIA that is still consistent with the safety of the public.

 

  1. 10.262 The Commission is not of the view that civil orders should be imposed directly by the courts when making, varying or revoking a supervision order. However, courts should consider whether the person is receiving treatment or services under a less restrictive order in the civil mental health or disability system. Considering less restrictive civil treatment and services already in place may negate the need for an imposition of a
    CMIA order or the continuance of a CMIA order and may facilitate the progress of the person through the system in these cases.
  2. 10.263 The Commission acknowledges that there is already a transition to the civil system for supervised people with a mental illness in practice, and there is existing flexibility in
    the system for supervised people to transition to civil orders. Further, the availability
    of support in the civil system appears to be a factor that courts consider when varying supervision orders.257 In the Commission’s view, however, expressly providing for the consideration of civil orders in the CMIA will ensure that courts have regard to this
    factor in a more consistent manner.

Recommendation

90 Section 40(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require that, for the purpose of considering whether a less restrictive order is more appropriate, the court is to have regard to whether the person is receiving treatment or services under a civil order under the Mental Health Act 2014 (Vic) or the Disability Act 2006 (Vic), and
the conditions of any such order.

 

  1. 10.264 It is not intended that this recommendation apply to the new orders for mentally ill offenders in Part 5 of the Sentencing Actcreated by the MHA 2014.258

Recovery or progress made while under supervision

Views in submissions and consultations
  1. 10.265 It was suggested to the Commission that the court should consider more ‘positive’ factors in making decisions under the CMIA that demonstrate the recovery or progress a supervised person has made.259 Examples included behaviour and attitude change, treatment progression, personal improvement, the achievement of treatment outcomes and the utility of an ongoing order in the context of the recovery framework established by the CMIA.260
The Commission’s conclusion
  1. 10.266 The Commission agrees that considering a supervised person’s recovery and progress is more in line with the therapeutic focus of the CMIA. Case law indicates that courts already consider a supervised person’s responsiveness to treatment,261 control of any ongoing symptoms262 and the person’s compliance with medical treatment.263 However, the Commission considers that a broader consideration of the person’s recovery or progress, in terms of treatment and personal improvement, may address some of the feedback the Commission received about reviews being traumatic and negative experiences for supervised people.
  2. 10.267 Further, courts have generally looked at the resolution of any symptoms, which is a factor that is more relevant for people with a mental illness than people with an intellectual disability or other cognitive impairment. A criterion that includes a consideration of personal improvement would ensure the factors in section 40 of the CMIA are more tailored to people with an intellectual disability or other cognitive impairment.
  3. 10.268 Finally, the Commission considers that taking into account a person’s recovery or progress will also assist in providing continuity in decision making, for example, between the Forensic Leave Panel and the court.

Recommendation

91 Sections 40(1) and 54(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require the court and the Forensic Leave Panel respectively to have regard to the supervised person’s recovery or progress in terms of treatment progression and personal improvement.

 

Factors the Forensic Leave Panel should consider

  1. 10.269 The Vincent Review recommended that the government consider whether to amend
    the CMIA to ensure that the Forensic Leave Panel considers specific criteria before granting leave.
    264 Previously, the main criterion for deciding whether or not to grant leave were based on the dangerousness of the person. The Vincent Review noted that while the Supreme Court had provided some guidance on the statutory interpretation of that provision, there was still some uncertainty in its interpretation that would benefit
    from clarification.
    265
  2. 10.270 The legislature amended the CMIA to implement the recommendation by the
    Vincent Review. Now the CMIA also requires the Forensic Leave Panel to have regard
    to the person’s current mental condition or pattern of behaviour, clinical history,
    social circumstances and the applicant profile and leave plan.266

 

  1. 10.271 The Forensic Leave Panel may grant an application for on-ground or limited off-ground leave if it is satisfied on the evidence that:
  • the proposed leave will contribute to the person’s rehabilitation
  • the safety of the person or members of the public will not be seriously endangered
    as a result of the person’s leave.267
  1. 10.272 The same criteria outlined in [10.271] apply to an application to vary a forensic patient
    or forensic resident’s on-ground or limited off-ground leave. However, the Forensic Leave Panel must also be satisfied that there has been a significant alteration in the person’s circumstances since it last granted or varied leave.268
  2. 10.273 In hearing any matter, the Forensic Leave Panel:
  • must act according to ‘equity and good conscience’ without regard to technicalities and legal forms
  • is bound by the rules of natural justice
  • is not required to conduct any proceedings in a formal manner.269
  1. 10.274 While there is now more guidance for the Forensic Leave Panel following the amendments to the CMIA, this guidance is not as extensive as the guidance provided to courts in section 40 for a decision to make, vary or revoke a supervision order or to grant or revoke extended leave.270
  2. 10.275 In the consultation paper, the Commission asked whether the CMIA provides sufficient guidance to the Forensic Leave Panel for making decisions on leave.

Views in submissions and consultations

  1. 10.276 The Commission did not receive much feedback on whether the CMIA should provide more guidance to the Forensic Leave Panel in exercising its decision-making functions in relation to leave.
  2. 10.277 In its submission, Victoria Legal Aid stated that the Forensic Leave Panel may not grant leave if the treating team, who may consider operational factors outside the CMIA,
    do not support the leave application. Victoria Legal Aid proposed that the Panel should be subject to the principle of least restriction in the CMIA.271
  3. 10.278 One stakeholder suggested that the Forensic Leave Panel would benefit from a stronger understanding of the nature of the person’s mental condition and the available treatment in the community.272 It was noted that people with an intellectual disability sometimes
    do not make progress as quickly as people with a mental illness, or may be more reluctant to take leave.273 Requiring the Panel to consider the specialist treatment available could assist the Panel in considering the leave applicant’s risk and would increase accountability from service providers.274

The Commission’s conclusion

  1. 10.279 The Commission considers that the Forensic Leave Panel would benefit from more guidance in decision making so that its decisions are in line with the decision-making principles that underlie the CMIA.
  2. 10.280 Some factors listed in section 40(1) of the CMIA apply to extended leave decisions and therefore in the Commission’s view should apply to less extensive grants of leave made by the Forensic Leave Panel.
  3. 10.281 A part of the information the court is required to consider in section 40(1) of the CMIA will already be available to the Forensic Leave Panel as part of the applicant profile or leave plan. For example, information on the person’s mental impairment, condition or disability and information on the relationship between the impairment, condition or disability and the offending conduct. However, in the Commission’s view there are additional factors that are relevant to leave decisions and that are not already covered by the applicant profile or leave plan.
  4. 10.282 These factors are encompassed in the recommendations already made by the Commission above that introduce additional factors into the decision-making process by the Forensic Leave Panel, consistent with the factors required to be considered by the court. These are:
  • Recommendation 3—that the principle of least restriction in section 39 of the CMIA apply to all decisions being made under the CMIA, including decisions by the Forensic Leave Panel.
  • Recommendation 80—that the Panel considers previous leave granted to the leave applicant in making a decision whether to grant leave.
  • Recommendation 87—that the court and the Panel consider whether the person poses an unacceptable risk to another person or other people generally.
  • Recommendation 91—that the court and the Panel consider the person’s recovery or progress in terms of treatment progression and personal improvement.
  1. 10.283 These recommendations cover the factors which, in the Commission’s view, should govern decision making by the Forensic Leave Panel. Therefore, no further recommendations are made to require the Panel to have regard to additional factors.

Improvements to specific leave processes

Flexibility in Forensic Leave Panel procedure

  1. 10.284 In the consultation paper, the Commission set out in detail the processes for leave under the CMIA. The Commission sought feedback on how leave processes had affected people who had experience with the CMIA and whether changes were required to make them more just, efficient and consistent with the CMIA’s underlying principles.
  2. 10.285 Overall, submissions and consultations suggested a need for more flexibility in
    leave procedures.

Increased flexibility for extending and suspending leave

Views in submissions and consultations
  1. 10.286 There was a suggestion in submissions that the Forensic Leave Panel should only make decisions about major leave transitions and there should be more flexibility in suspensions of leave.275 In particular:
  • At present, where special leave is granted for the purpose of medical treatment,
    it cannot exceed seven days. The CMIA could clarify that where medical treatment is needed for more than seven days, further grants of special leave can be arranged to allow for this.276
  • Under section 54 of the CMIA, the Panel can grant leave for a maximum of six months and impose any conditions it considers appropriate.277 After six months, the person is required to make a new application to renew the initial grant of leave.
  • All leave items considered by the Forensic Leave Panel already allow a nurse or the treating doctor to determine whether leave should be granted on any given day.
    But the Chief Psychiatrist must still authorise suspensions of leave.
  1. 10.287 The following issues were identified in relation to the current process:
  • There are significant resources involved in applying for and renewing a grant of
    leave. For 70 forensic patients it requires a minimum of 140 detailed applications
    and determinations each year.278
  • Leave can be interrupted if Panel sittings are cancelled because leave cannot be resumed after it expires until the next Panel hearing. This can have significant consequences for supervised people who are attending education or employment while on leave.279
  1. 10.288 One participant at Thomas Embling’s Consumer Advisory Group described the process
    for applying for leave as a ‘bureaucratic jungle’.280
  2. 10.289 This was echoed by observations from Associate Professor Andrew Carroll,
    an experienced consultant psychiatrist in this area:

At the forensic leave panel level the current process involves micromanagement and an incredible amount of inefficiency and cost. A useful model is that of South Australia where, as I understand it, teams need only obtain permission from the authorities at times of major transitions for example when moving to unescorted leave from escorted leave, and the fine details of leave planning are left to the discretion of the treating team: the authorities merely have to be comfortable with the broad parameters set.
The added benefits would be that this would free up time for the Panel to focus efforts on high risk cases.281

  1. 10.290 Forensicare suggested that the Panel should focus on major leave transition points such as the first grant of escorted off-ground leave, the first grant of unescorted off-ground leave and the first unescorted overnight off-ground leave.282

 

  1. 10.291 In the Commission’s consultation with the Forensic Leave Panel, Panel members expressed the view that it was important not to ‘fragment’ leave processes. It was thought that there were benefits in the Panel having oversight over most leave decisions, including renewals of leave already granted. Panel members also noted the value in having an independent body to decide all leave decisions. Further, it was noted that it is helpful for the Panel to see the person through their progress for the purpose of continuity. Panel members also saw themselves as having a role in encouraging a supervised person to apply for more leave. They noted that if a supervised person’s leave renewal were to occur internally, the Panel would not be able to help supervised people in this way.
  2. 10.292 The Chief Psychiatrist suggested that where there is a temporary and undramatic change in leave, the Chief Psychiatrist need not authorise the change.283 It was suggested that the Chief Psychiatrist could delegate the Chief Psychiatrist’s power to a class of people, for example, authorised psychiatrists.284
The Commission’s conclusion
  1. 10.293 The Commission recognises that the leave process is administratively demanding. This administrative burden should be minimised as far as possible as long as it is consistent with the supervised person’s rights and the safety of the community.
  2. 10.294 The Commission agrees with Forensicare’s submission that a subsequent grant of leave
    to the same person on the same conditions does not warrant the high level consideration of a judicial member and two or three Panel members. Forensicare’s resources are better
    targeted towards the supervised person’s clinical progress rather than their leave applications. The Forensic Leave Panel can focus on the consideration of the supervised person’s progress and risk at major leave transition points.
  3. 10.295 The Commission notes comments by the Forensic Leave Panel about the importance of continuity in leave decisions and the role of Panel members in encouraging a supervised person to apply for more leave entitlements. The Commission’s Recommendations 81 (education and training for Panel members) and 91 (requirement to have regard to a person’s recovery or progress under section 40(1) of the CMIA) aim to address issues surrounding the continuity of leave decisions. However, the Commission considers that there should also be some monitoring of the supervised person’s progress in place of the monitoring function that Panel hearings would serve. The Commission agrees with Forensicare’s suggestion that the treating team should provide regular reports of the supervised person’s progress on leave on a six-monthly basis. This will enable the supervised person to be brought before the Panel if their leave entitlements should be increased or decreased by the Panel.
  4. 10.296 The Commission also agrees that a power to delegate the Chief Psychiatrist’s power
    to suspend leave would retain proper oversight over the leave process but would be less burdensome administratively.285 This is also consistent with general changes in the civil mental health regime under the MHA 2014, under which the Chief Psychiatrist remains responsible for overseeing the systemic provision of clinical treatment but has less direct responsibility in terms of monitoring treatment and management of people on non-custodial supervision orders than was the case under the MHA 1986. The MHA 2014 establishes a Mental Health Complaints Commissioner who has a range of functions including the management and resolution of complaints relating to mental health
    service providers.286

 

Recommendation

92 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended so that:

(a) A grant of special leave, on-ground leave or off-ground leave can be extended for the same period and subject to the same conditions by the authorised psychiatrist of the approved mental health service or
the Secretary to the Department of Human Services.

(b) The authorised psychiatrist for the approved mental health service or the Secretary to the Department of Human Services must provide the Forensic Leave Panel with a report of the person’s progress while on leave and their compliance with the conditions of their leave for each period for which leave is extended.

(c) The Chief Psychiatrist may delegate the power to suspend a special leave of absence, on-ground leave or limited off-ground leave under section 55 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to the authorised psychiatrist of the approved mental health service.

Increased flexibility in leave conditions

  1. 10.297 The Forensic Leave Panel can place any conditions on leave that it considers appropriate, including any escorts that may be required, where the forensic patient or forensic resident may go while on leave, who they may meet with, their travel arrangements or any requirement to undertake drug or alcohol testing after they return from leave.287
Views in submissions and consultations
  1. 10.298 Forensicare’s Patient Consulting Group noted that the prescriptive wording of leave conditions sometimes means that forensic patients are unable to take leave. One forensic patient provided an example of being granted leave to be taken with his mother and stepfather. Because the condition of the order specified the attendance of both his mother and stepfather, he was not permitted to go on leave when his stepfather was unable to attend.288 Forensic Leave Panel members agreed that the family-type conditions are not always met.289
The Commission’s conclusion
  1. 10.299 The Commission considers that this is an issue that is not appropriate to be addressed in legislation but recommends that training for Forensic Leave Panel members includes guidelines on making leave conditions flexible enough so that they are protective of the community but do not unduly restrict the supervised person’s rights. This is consistent with the principle of least restriction that underlies the CMIA.

 

Recommendation

93 Education and training for Forensic Leave Panel members in Recommendation 81 should include guidelines on making leave conditions sufficiently prescriptive so that they are consistent with the safety of the community but sufficiently flexible to not unduly restrict the person’s freedom or personal autonomy.

 

Minor amendments to leave processes

Changes to who may provide the applicant profile

Views in submissions and consultations
  1. 10.300 In its submission, Forensicare noted that the CMIA requires that an applicant profile be provided to the Forensic Leave Panel in support of applications for on-ground leave, limited off-ground leave or a variation of leave.290 Although the CMIA requires that the applicant profile be provided by Forensicare’s Clinical Director for forensic patients, in practice it is provided by the authorised psychiatrist or their delegate, because they are best placed to provide it.291 Forensicare submitted that section 54A(1)(a) of the CMIA should be amended to reflect this practice.292
The Commission’s conclusion
  1. 10.301 The Commission considers that the CMIA should reflect what occurs in practice to promote transparency and understanding of the processes concerning supervision orders. Further, amending the CMIA to allow the applicant profile to be provided by
    the authorised psychiatrist or their delegate will not be detrimental to the rights and interests of people subject to the CMIA or the safety of the community. The Commission therefore recommends that section 54A(1)(a) of the CMIA be amended to reflect Forensicare’s practice.

Recommendation

94 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to reflect that the applicant profile may be provided by an authorised psychiatrist at the Victorian Institute of Forensic Mental Health (Forensicare) or their delegate under section 54A(1)(a).

 

Allowing for a special leave of absence when leave is suspended

Views in submissions and consultations
  1. 10.302 Forensicare submitted that section 58(6) of the CMIA creates confusion regarding the types of leave that can be granted to a person during the period of suspension of their extended leave. It is unclear, for example, whether a person whose leave has been suspended can be granted special leave to receive medical treatment during the period
    of suspension.293
The Commission’s conclusion
  1. 10.303 The Commission considers that even though there has been a suspension of leave, a person should be able to access medical treatment if necessary. This is consistent with the therapeutic focus of the CMIA, the state’s obligation to people within their care and from a human rights perspective. The Commission therefore recommends an amendment to section 58(6) to clarify that a person whose leave is suspended may still apply for special leave of absence.

Recommendation

95 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to clarify that a person whose leave is suspended under section 58,
or a person on their behalf, may apply for special leave of absence.

 

Improvements to specific review processes

Providing exceptions to the requirement to attend a review hearing

Views in submissions and consultations

  1. 10.304 Submissions and consultations pointed to the distressing effect of review hearings.294 This was attributed to the revisiting of the circumstances of the offence, the airing of deeply personal matters in a public forum and its tendency to focus on negative aspects rather than the progress the supervised person has made.295 One person subject to a non-custodial supervision order was reported by their supervising team to have described the review process as a ‘painful experience’.296
  2. 10.305 Stakeholders noted the considerable resources involved in each review hearing, particularly in terms of travel time for people from regional areas.297 In one example provided to the Commission, the area mental health service staff had to leave at 5.30am to arrive in Melbourne in time for a 9am hearing, and then drive back to where they were based on the same day.298 Concerns were expressed for staff who made these long journeys in a day.299

 

  1. 10.306 It was suggested that it is beneficial to allow for a supervised person not to attend court or for reviews to be conducted on the papers or via video link.300 In addition, Victoria Legal Aid suggested that where the order is being confirmed, resources would be saved
    if these matters could be dealt with on the papers with the consent of all parties. It would also avoid any counter-therapeutic effects of a review hearing.301

The Commission’s conclusion

  1. 10.307 The Commission notes that reviews are sometimes conducted by video link. The CMIA already provides that if the court is satisfied that the attendance of the person before the court would be detrimental to the person’s health, the court may order that the person not attend the hearing.302 This practice, however, may not be prevalent.
  2. 10.308 The Commission agrees that there are benefits in allowing supervised people and others involved in review hearings to attend hearings via video link, for the supervised person
    not to be required to attend the hearing at all and for some hearings to be conducted on the papers.
  3. 10.309 The Commission considers that these options can be made available by application of those involved in the review. Making these options accessible based on an application or
    the consent of the parties, instead of the court’s discretion, will encourage the use of these options in cases where there are good reasons to do so.

Recommendation

96 The following amendments should be made to the review provisions in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to
provide that:

(a) If a supervised order is being confirmed, the court may order the review hearing to be conducted on the papers with the consent of all parties.

(b) The court may order that any person required to attend a review hearing attend via video link with the consent of all parties.

(c) If the attendance of the supervised person before the court would be detrimental to the person’s health, the court may order that the person not attend the hearing or attend via video link with the consent of
all parties.

 

Participation in reviews by experts and case managers

  1. 10.310 It is quite common for someone to be both the person responsible for supervision
    (for example, the treating clinician) and the person responsible for preparing reports
    on the supervised person.
  2. 10.311 In consultations, case managers and clinicians noted the difficulty in giving evidence in front of the person they supervise.303 This can lead, for example, to the perception that information that is provided to case managers or clinicians on a confidential basis is then used in court to demonstrate why the supervision order should not be revoked.304 This is also an issue that arises for psychiatrists. Associate Professor Andrew Carroll observed that although it would be preferable for the risk assessment to be done by an entirely independent psychiatrist:

In practice, the costs of this would be prohibitive. Experience since the CMIA came in suggests that in practice the dual role of the treating psychiatrist is not a great problem in practice: the key reason for this I would suggest is that the “rules of engagement”
are very clear to all parties throughout the treatment relationship. Patients are well [aware], certainly at the rehabilitation end of the hospital, that their treating psychiatrist may one day be called upon in court to provide a risk assessment. This fact permeates the treatment relationship but in my (completely biased) opinion does not poison
that relationship. That said, it would be helpful if patients could more readily access
high-quality 2nd opinions from independent forensic psychiatrists in the event that
they are unhappy with the views of their treating doctor.305

  1. 10.312 The Commission acknowledges that psychiatrists, clinicians and case managers can be in a difficult position where they feel a duty to maintain a confidential and supportive relationship with the person subject to the supervision order but at the same time are relied on as the main source of information for the court on that person.
  2. 10.313 The Commission’s recommendations may go some way to addressing this concern, including:
  • In Chapter 8, the Commission recommends reframing the role of the Department of Health and the Department of Human Services so that these organisations are no longer parties to review proceedings, but provide information to assist the court.
  • In this chapter, the Commission recommends that an education and training package be introduced to improve transparency and communication in the leave process and to emphasise to leave applicants the independent nature of the decision making by the Forensic Leave Panel.
  • In Chapter 11, the Commission recommends the development of workforce strategies to increase the capacity of the general mental health and disability sector to undertake forensic mental health and disability work. This could provide people who work in this area with the skills necessary to manage a relationship with a person subject to a supervision order.

Removing the three-year restriction on applying for a variation of a custodial supervision order

  1. 10.314 If the court refuses an application to vary a custodial supervision order, a fresh application is barred for another three years or a lesser period as the court directs.306

Views in submissions and consultations

  1. 10.315 Victoria Legal Aid (VLA) submitted that this provision is a ‘barrier to effective and ongoing assessment of a person’s progress and suitability for reduced restrictions’.307 VLA submits that the three-year restriction should be removed but that the court should have the power to impose limitations on repeated, unreasonable or vexatious applications.308

The Commission’s conclusion

  1. 10.316 The Commission agrees with the view put forward by VLA. Preventing a supervised person from making an application to vary a custodial supervision order for three years is inconsistent with the Commission’s approach to the decision-making, review and leave framework. In particular, the Commission considers that the point at which a supervised person’s restrictions can be safely reduced should be identified as promptly as possible.
  2. 10.317 The Commission acknowledges that this recommendation may result in an increase in applications for a variation of a custodial supervision order. However, the Commission anticipates that this increase will not be substantial given the arrangements in place to filter out unreasonable applications. For example, an application usually has to be supported by the person’s treating team and VLA is unlikely to act in reviews that have
    no reasonable prospects of success.

Recommendation

97 Section 31(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be abolished.

 

Footnotes

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