11.Management of people subject to supervision orders

Introduction

  1. 11.1 As part of its review of the provisions in the Crimes (Mental Impairment and Unfitness
    to be Tried) Act 1997
    (Vic) (‘CMIA’) governing supervision and review, the Commission has examined how the CMIA operates in terms of the management of people subject
    to supervision orders.
  2. 11.2 In its Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: consultation paper (‘the consultation paper’), the Commission examined the arrangements for monitoring people subject to supervision orders under the CMIA, including the:
  • roles of organisations responsible for supervision
  • mechanisms for responding to breaches of supervision orders
  • processes for effecting interstate transfers of supervised people.
  1. 11.3 Stakeholders identified a number of areas where change was required in relation to these issues, both in relation to specific provisions in the CMIA and provisions in related legislation or sectors that form a broader part of its operation.
  2. 11.4 The overall approach that the Commission has taken in considering these issues is to examine and identify the barriers to effectively managing people on supervision orders. The Commission has recommended that changes be made to address those areas
    where, in its view, such barriers result in artificial decision making or in CMIA provisions operating in a manner that is unjust or inconsistent with its underlying principles.
  3. 11.5 In response to the significant concerns raised in preliminary consultations, the Commission also specifically examined the suitability of the model of supervision for people who are subject to the CMIA who have an intellectual disability or other cognitive impairment, such as acquired brain injury. A consistent feature of submissions and consultations was that changes are needed to the model of supervision to ensure that it operates in a more appropriate way for these groups. The Commission’s recommendations seek to introduce more safeguards and facilitate a ‘person-centred’ approach to managing such vulnerable people subject to supervision orders.
  4. 11.6 This chapter deals with the following issues related to the management of people on supervision orders:
  • Accommodation for people with an intellectual disability or other cognitive impairment—Effective supervision for people with an intellectual disability or other cognitive impairment subject to the CMIA is often limited by a lack of appropriate accommodation.

 

  • Flexibility in the processes for managing breaches for people with a mental illness subject to supervision orders—There is limited flexibility in managing people who breach supervision orders due to the limited powers in the current CMIA provisions and a lack of secure facilities for people with a mental illness that provide an intermediate step between the high-secure facility of Thomas Embling Hospital
    and community accommodation.
  • Suitability of the system of supervision for people with an intellectual disability—There is no mandated treatment pathway or clinical oversight for people with an intellectual disability under the CMIA, due to inconsistencies between the CMIA and other Victorian legislation governing supervision.
  • Interstate transfer orders—The processes for a successful transfer of a person subject to a supervision order are overly bureaucratic and lengthy.
  • Police response to people on supervision orders—There is no consistent way for
    police to easily access information that may assist them in responding appropriately to a person who has been apprehended while on a supervision order or who has breached a supervision order.
  1. 11.7 In considering these issues, a number of gaps in service provision have been identified,
    particularly for people with an intellectual disability or other cognitive impairment under the CMIA. The recommendations
    outlined in this chapter aim to address some of the gaps to ensure that the CMIA applies equally to all people on supervision orders.
  2. 11.8 This chapter concludes by noting additional operational issues that were raised in submissions and consultations that were not appropriate to be dealt with through recommendations by the Commission. These have been included so that they may inform internal policy and practice improvements for those who work within the supervision regime under the CMIA.

Current law

CMIA provisions setting out responsibilities for supervision

  1. 11.9 A person can become subject to supervision after a finding of not guilty because of mental impairment1 or a finding that they committed the offence charged (after being found unfit to stand trial).2 If a person is declared by a court to be liable to supervision after either finding, responsibility for supervision of that person is determined by both
    the type of supervision order imposed and the place where the person is to be detained or receive services.3
  2. 11.10 A person who is placed on a custodial supervision order is committed to custody in an ‘appropriate place’ (an approved mental health service, a residential treatment facility or a residential institution)4 or in a prison ‘if there is no practicable alternative in the circumstances’.5 Responsibility for supervision and management of people on supervision orders is shared across three government departments:
  • A person who is detained in custody in an approved mental health service is in the custody of the Secretary to the Department of Health.6

 

 

  • A person who is detained in custody in a residential treatment facility or a residential institution is in the custody of the Secretary of the Department of Human Services.7
  • A person who is detained in custody in a prison is in the custody of the Secretary of the Department of Justice.8
  1. 11.11 A person who is placed on a non-custodial supervision order can be subject to conditions, including a condition to receive services in an appropriate place or from a disability service provider, the Secretary of the Department of Human Services or the Secretary of the Department of Health.9
  2. 11.12 The actual responsibility for supervising a person subject to a custodial or non-custodial supervision order is designated according to the place of custody or services received:
  • The Victorian Institute of Forensic Mental Health (Forensicare), a statutory agency
    in the Department of Health, is responsible for people who are in custody in,
    or receiving services from, an approved mental health service.
  • The Secretary of the Department of Human Services is responsible for people who are in custody in a residential treatment facility or a residential institution or receiving services from a disability service provider.

Legislation governing the management of people supervised under the CMIA

  1. 11.13 In the vast majority of cases, the management of people subject to supervision orders is governed by three separate pieces of legislation: the CMIA, the Disability Act 2006 (Vic) and the Mental Health Act 2014 (Vic) (‘MHA 2014’).10
  2. 11.14 The interactions between these different laws are complex. The MHA 2014 and the Disability Act primarily provide for voluntary treatment or services or compulsory civil orders for treatment or services for people with a mental illness or intellectual disability. However, by virtue of the responsibility for supervision that the CMIA imposes on the Secretaries of the Department of Health and Department of Human Services, some of the provisions of these Acts also apply to the management of people on supervision orders under the CMIA.

The Disability Act

  1. 11.15 The Disability Act defines an ‘intellectual disability’ as the concurrent existence of a significant sub-average general intellectual functioning and significant deficits in adaptive behaviour, each of which became manifest before the age of 18 years.11 A person with an intellectual disability for the purposes of the Act must be over the age of five years.12
Voluntary disability services
  1. 11.16 Disability Services are services provided by ‘disability service providers’. These services are voluntary, meaning that a person cannot be compelled to participate in services.
Compulsory disability services
  1. 11.17 The Disability Act also provides for compulsory treatment for people with an intellectual disability through a supervised treatment order13 made by the Victorian Civil and Administrative Tribunal (VCAT) or as a person admitted to a residential treatment facility or residential institution.14 People who are subject to compulsory treatment under the Disability Act are required to have a treatment plan and are subject to the clinical oversight of the Senior Practitioner. There are safeguards in place for the use of restrictive interventions such as chemical or mechanical restraint and seclusion.15

The Mental Health Act 1986 (Vic) and the Mental Health Act 2014(Vic)

  1. 11.18 Over the reference period, the Mental Health Act 1986 (Vic) (‘MHA 1986’) was the relevant legislation governing the treatment and care of people with a mental illness in Victoria. The MHA 2014 came into operation in Victoria on 1 July 2014, repealing the previous 1986 Act and establishing a new mental health legislative framework.
  2. 11.19 The MHA 2014 provides ‘a legislative scheme for the assessment of persons who appear to have mental illness and for the treatment of persons with mental illness’.16 The key objectives of the 2014 mental health legislation, outlined in the second reading speech, are to:
  • embed supported decision making in the law
  • promote recovery-oriented practice
  • minimise the use and duration of compulsory treatment
  • require compulsory treatment to be provided in the least restrictive and least intrusive manner possible
  • better facilitate carer and family involvement in treatment and care
  • increase safeguards to protect patient rights and dignity
  • encourage public sector clinicians and service providers to engage in continuous service improvement and reforms to the mental health service system.17
  1. 11.20 While many of the changes made by the MHA 2014 will affect the operation of the CMIA, this chapter’s focus is the law under the MHA 1986 as this is the legislation that was in operation throughout the reference period. Views expressed in submissions and consultations related to then-applicable law, the MHA 1986, and to practice under the 1986 Act.
  2. 11.21 The MHA 2014 commenced on 1 July 2014. Thus it is difficult to determine how its provisions will operate in practice and whether legislative changes it gives effect to will address some of the issues contained in this chapter. However, where a law or process under the MHA 1986 is explained in this chapter that differs significantly under the MHA 2014, this will be highlighted throughout the chapter.

Compulsory treatment and services for people with an intellectual disability

  1. 11.22 The CMIA and Disability Act provide for the compulsory treatment of, and services for, people with an intellectual disability subject to supervision orders under the CMIA.
  2. 11.23 The Department of Human Services has developed the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Practice Guidelines to assist in supervising people under the CMIA who are the responsibility of the Secretary of the Department of Human Services.18 The Commission has been advised by the Department of Human Services that new practice advice related to the CMIA is being updated for the purpose of implementation of an online practice framework. Two new Director instructions specific to supervision were released on 1 May 2014.

Status of forensic residents under the Disability Act

  1. 11.24 A ‘forensic resident’ is a person who is detained in custody under the CMIA in a residential treatment facility or residential institution under the supervision of the Secretary of the Department of Human Services.19
  2. 11.25 The Disability Act requires that forensic residents are provided with services under the
    Act in a residential treatment facility or residential institution.20
  3. 11.26 There are two relevant facilities in Victoria that are currently used under the CMIA:
  • Intensive Residential Treatment Program: a residential treatment facility provided by the Disability Forensic Assessment and Treatment Service (DFATS) which includes treatment, support and accommodation for people who display high-risk anti-social behaviour for a period not exceeding five years.
  • Long Term Rehabilitation Program: a residential institution located at the Plenty Residential Services, which comprises approximately 20 houses on 20 hectares for people who require intensive support in a semi-secure environment with staff present 24 hours a day.
  1. 11.27 A person can only be admitted to a residential treatment facility if the following
    criteria are met:21
  • the person has an intellectual disability
  • the person presents a serious risk of violence to another person
  • all less restrictive options have been tried or considered and are not suitable
  • the residential treatment facility can provide services for the treatment of the person with a disability and that treatment is suitable for that person
  • the Senior Practitioner has been notified of the proposed admission
  • an order specified under section 152(2) of the Disability Act22 applies to the person enabling compulsory treatment to be provided.

 

  1. 11.28 The Disability Act states that a person can only be admitted to a residential institution if:
  • the person requires services which can provided by admission to the residential institution, and
  • admission to a residential institution provides the best possible choice of services for enhancing the person’s independence and self-sufficiency and is least likely to produce regression, loss of skills or other harm to that person, or
  • admission to a residential institution is the option which is the least restrictive of the person as is possible in the circumstances, or
  • unless the person is admitted to a residential institution the person or any person with whom he or she resides will suffer serious physical or emotional harm.23
Safeguards for people with an intellectual disability under the Disability Act
  1. 11.29 The Disability Act outlines clinical requirements and provides for a range of safeguards in supervising people who have been admitted to a residential treatment facility or residential institution.
  2. 11.30 A treatment plan must be provided within 28 days of admission to a residential institution or treatment facility that specifies the treatment to be provided, the expected benefit of that treatment to the person on the order and the proposed process for transition from the person being a resident of the facility or institution to living in the community.24
  3. 11.31 A restrictive intervention is any intervention that is to restrict the rights or freedoms of movement of a person with a disability including chemical restraint, mechanical restraint or seclusion.25 The treatment plan must specify any restrictive interventions that may be used, which are then subject to reporting and monitoring requirements and rights protection with the oversight of the Senior Practitioner.26
  4. 11.32 The Senior Practitioner is responsible for ensuring that the rights of people who are subject to restrictive interventions and compulsory treatment are protected, and that appropriate standards in relation to restrictive interventions and compulsory treatment are complied with.27 A person cannot be admitted to a residential facility or institution unless the Senior Practitioner has been notified.28
  5. 11.33 A copy of the treatment plan must be provided to the Senior Practitioner who is required to consider the acceptability of the plan.29 A report on the implementation of the treatment plan must be provided to the Senior Practitioner at least every six months.30
  6. 11.34 The Senior Practitioner must approve any changes to the treatment plan but cannot approve changes to the treatment plan that increase the level of supervision or restriction except in an emergency.31
  7. 11.35 A person may apply to VCAT for a review of their treatment plan at any time.32 VCAT must review and determine the appropriateness of the treatment plan every 12 months. An application must be made to VCAT for a review within six months of a person being admitted to a residential treatment facility or institution.33
Barriers to accessing custodial facilities under the Disability Act
  1. 11.36 There are limited beds available at both the Intensive Residential Treatment Program and the Long Term Rehabilitation Program. The Intensive Residential Treatment Program has 14 beds and the Long Term Rehabilitation Program has five beds available. Where a person is unable to be accommodated in these facilities, the only other options are prison or to create a specialised accommodation solution for the person in the community, which is very resource-intensive.
  2. 11.37 A person on a custodial supervision order under the CMIA is unlikely to meet the admission criteria for a residential treatment facility or institution for a number of reasons. A person on a custodial supervision order may not meet the definition of an ‘intellectual disability’ (for example, people with acquired brain injury), may not pose a risk of serious violence to others or may not be suitable for the treatment provided. A further difficulty is that the Intensive Residential Treatment Program only provides accommodation for a period of five years and a custodial supervision order is for an indefinite period. While the Long Term Rehabilitation Program at Plenty Residential Services provides long-term accommodation, it does not provide treatment.
  3. 11.38 At 30 June 2013, there were 30 people who were supervised by the Department of Human Services on a CMIA supervision order. Of these, three were clients of and are supervised by the Department of Human Services on a custodial supervision order.34
    One of these clients had been admitted to the Intensive Residential Treatment Program at DFATS and two clients were in the Long Term Rehabilitation Program at Plenty Residential Services. One person on a non-custodial supervision order also resided at Plenty Residential Services as part of the Long Term Rehabilitation Program.35

Supervised treatment orders under the Disability Act

  1. 11.39 The provisions governing compulsory treatment for people subject to custodial supervision orders under the CMIA can be compared with a ‘supervised treatment order’, a civil order
    providing for compulsory treatment under the Disability Act. These orders are underpinned by comprehensive safeguards and protections for people with an intellectual disability or other cognitive impairment receiving compulsory treatment under the Disability Act.
  2. 11.40 A person with an intellectual disability who is receiving residential services can be made subject to a supervised treatment order.36 A supervised treatment order can be made by VCAT where:
  • the person has previously exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a risk of serious harm
  • there is a significant risk of serious harm to another person which cannot be substantially reduced by using less restrictive means
  • the services to be provided to the person in accordance with the treatment plan will be of benefit to the person and substantially reduce the significant risk of harm to another person
  • the person is unable or unwilling to consent voluntarily to complying with a treatment plan to substantially reduce the risk of harm to another person
  • it is necessary to detain the person to ensure compliance with the treatment plan and to prevent a risk of serious harm to another person.37
  1. 11.41 A person on a supervised treatment order must have a treatment plan.38 A treatment
    plan must:
  • specify the treatment that will be provided
  • state the expected benefit of the treatment to the person
  • specify any restrictive interventions that are to be used
  • specify the level of supervision that will be required to ensure the person participates in the treatment
  • set out a proposed process for transition of the person to lower levels of supervision and if appropriate, to living in the community without a supervised treatment order being required.39
  1. 11.42 The Senior Practitioner and VCAT play a similar role for people on supervised treatment orders to that described at [11.24]–[11.28] for people in a residential treatment facility or institution. They provide clinical oversight, monitor restrictive interventions, review treatment orders and safeguard rights.40
  2. 11.43 One of the major differences for a person on a supervised treatment order compared with other compulsory orders under the Disability Act is the involvement of the Public Advocate. The Public Advocate must be notified at various stages and is able to make applications for a supervised treatment order and for a review, variation or revocation
    of the order.41

Status of people with an intellectual disability on non-custodial supervision orders under the CMIA

  1. 11.44 People on non-custodial orders supervised by the Department of Human Services do
    not have a legal status under the Disability Act. This means that there is no legal requirement to provide a treatment plan, clinical oversight, reviews of treatment plans
    or to safeguard the rights of people with an intellectual disability who are subject to a
    non-custodial supervision order. This is the case even though such people may be subject to ‘compulsory’ services, such as monitoring and restrictions on movement or treatment, that are provided by disability service providers as part of the conditions of a
    non-custodial supervision order.

Recent focus on the application of the law to people with an intellectual disability

  1. 11.45 Relevant to the examination of compulsory treatment of people with an intellectual disability under the CMIA is the recent and significant focus at the state and federal level in Australia on the treatment of people with an intellectual disability under the law.
    A number of reviews have examined how people with an intellectual disability are
    treated and called for improvements to ensure that they are treated with dignity and
    in accordance with their legal and human rights.

 

  1. 11.46 On 5 March 2013, the Victorian Parliament Law Reform Committee tabled its report on the Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and Their Families and Carers.42 The terms of reference for this inquiry covered a range of issues including barriers to the justice system for people with an intellectual disability and asked the Committee to consider ways to enhance participation, supports and services. The terms of reference for the Commission’s review of the CMIA specifically ask the Commission to have regard to the recommendations of the Victorian Parliament Law Reform Committee.
  2. 11.47 Also in Victoria, the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) is currently conducting research into the experience of people with disabilities when they report crime. The report on its research and recommendations for change is due mid-2014.43
  3. 11.48 The Australian Human Rights Commission released the issues paper, Equal Before the Law: Towards Disability Justice Strategies in February 2014. The paper ‘provides a snapshot of where that equality does not exist, highlights services and programs that improve equality before the law for people with disabilities, and sets some directions by which change may occur’.44 The Australian Human Rights Commission identified a number of barriers that exist for people with a disability in the criminal justice system45 and expressed the view that each Australian jurisdiction should respond to these in a holistic and overarching way through the development of a ‘Disability Justice Strategy’.46 Participation, accountability, equality and empowerment were identified as part of the ‘human-rights-based approach’ adopted in the paper.47
  4. 11.49 The Australian Law Reform Commission’s project on Equality, Capacity and Disability in Commonwealth Laws is a broad inquiry into ‘Commonwealth laws and legal frameworks that deny or diminish the equal recognition of people with disability before the law,
    and their ability to exercise legal capacity’.48
  5. 11.50 A number of state and federal government departments and agencies have developed disability action plans that set out strategies for reducing barriers to services (and sometimes employment) for people with disabilities. For example, the Department of Justice has developed a Disability Action Plan 2012–16 that aims to reduce barriers to
    the justice system for people with a disability.49 This plan may assist in addressing some
    of the issues raised in the above reports and inquiries about the interaction of people
    with a disability with the justice system.

Compulsory treatment of people with a mental illness

  1. 11.51 At the time the Commission conducted the reference, the MHA 1986 governed the treatment and care of people receiving compulsory mental health treatment both in an inpatient setting and in the community. Together with the CMIA, the MHA 1986 provided for the compulsory treatment of and services for people with a mental illness subject to supervision orders under the CMIA.

 

Status of forensic patients under the MHA 1986 and MHA 2014

  1. 11.52 A forensic patient is a person who is subject to a custodial supervision and is detained in custody in an approved mental health service under the CMIA and supervised by the Department of Health.50 This means that the underlying mental condition for a forensic patient is usually a mental illness. In all but exceptional circumstances, Forensicare is
    the ‘approved mental health service’ that supervises people on a custodial supervision order with a mental illness.
  2. 11.53 All of the rights that applied to patients receiving compulsory treatment under the
    MHA 1986, and that now apply under the MHA 2014, also apply to forensic patients,
    as ‘forensic patient’ is included in the definition of ‘patient’.51
  3. 11.54 Forensic patients are entitled to expect that mental health providers (including designated mental health services), as well as any person exercising a power or function under the relevant mental health legislation, will act consistently with the mental health principles.52
  4. 11.55 The MHA 1986 required that forensic patients be provided with a treatment plan prepared by the authorised psychiatrist outlining the treatment to be provided. Treatment plans had to be reviewed on a regular basis and revised as required.53
  5. 11.56 In preparing, reviewing or revising a treatment plan, the authorised psychiatrist had to take into account:
  • the wishes of the patient, as far as they could be ascertained
  • unless the patient objected, the wishes of any guardian, family member or primary carer involved in providing ongoing care or support to the patient
  • whether the treatment to be carried out was only to promote and maintain the patient’s health or well-being
  • any beneficial alternative treatments available
  • the nature and degree of any significant risks associated with the treatment or any alternative treatment
  • any prescribed matters or anything else the authorised psychiatrist thought
    was appropriate.54

 

  1. 11.57 The MHA 1986 entitled patients, including forensic patients, to a statement that set
    out their rights under the Act, as well as information about their treatment.55
    The MHA 2014 provides a different and more flexible framework for the provision of a statement of rights. The MHA 2014 requires a statement of rights as part of the overall information to be provided to a patient so that they can make an informed decision
    about their treatment,56 a factor that goes to establishing a person’s capacity to give informed consent.57 In relation to all treatment, the MHA 2014 requires a statement of rights to be provided to the patient so that the patient can provide informed consent,58 which as a general requirement, must be given before treatment is provided,
    except where the patient does not have the capacity to give their consent or in other limited circumstances.59
  2. 11.58 The MHA 1986 provided that the Chief Psychiatrist was responsible for the medical care and welfare of people receiving treatment or care for a mental illness, including providing clinical oversight for treatment.60 Under the MHA 2014, the Chief Psychiatrist’s role is framed with a greater focus on clinical oversight61 and includes:
  • providing clinical leadership and expert clinical advice to mental health service providers in Victoria
  • promoting continuous improvement in the quality and safety of mental health services
  • promoting the rights of people receiving mental health services.62
  1. 11.59 The Chief Psychiatrist remains responsible for overseeing the systemic provision of clinical treatment, which includes powers to, in specific circumstances, review treatment
    choices in light of the patient’s interests63 and the investigation of the provision of mental health services.64

Status of people with a mental illness on non-custodial supervision orders under
the CMIA

  1. 11.60 As with people with an intellectual disability on a non-custodial supervision order,
    a person with a mental illness on a non-custodial supervision order did not have a legal status under the MHA 1986. This remains the case under the MHA 2014.65
  2. 11.61 While Forensicare has the ultimate responsibility for the supervision of people with a mental illness on non-custodial supervision orders, the day-to-day care and management of people with a mental illness on non-custodial supervision orders is carried out by area mental health services thorough individual services agreements.66 Area mental health services are responsible for providing case management and treatment for people with
    a mental illness on a non-custodial supervision order who live in their area.
  3. 11.62 As soon as possible after a person with a mental illness is made subject to a non-custodial supervision order, an individual service agreement is developed between Forensicare and a private practitioner or area mental health service. The individual service agreement provides for the supervision, management and treatment of the person on the
    non-custodial supervision order and outlines:
  • the roles and responsibilities of all service providers who are partners in the supervision, treatment and management of the person subject to a non-custodial supervision order
  • the requirements of the ‘Protocol between Forensicare and area mental health services for people subject to non-custodial supervision orders’67 and the publication ‘Non-custodial supervision orders—policy and procedure manual’68
  • specific provisions tailored to meet the needs of the person having regard to the person’s treatment plan, any conditions imposed by the court, the person’s medical and psychiatric history, their family and social circumstances, any special needs,
    risk assessments and available services
  • provisions regarding periodic review, revision as required and dispute resolution.69
  1. 11.63 Under the MHA 1986, the Chief Psychiatrist had a broad monitoring role in relation
    to the treatment and management of people on non-custodial supervision orders.
    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.70

Barriers in managing people subject to supervision orders

  1. 11.64 A strong theme to emerge from submissions and consultations was that the availability
    of resources can be a barrier to effectively managing people on supervision orders under the CMIA.
  2. 11.65 The following section examines two areas of operation raised in submissions and consultations where resources can impact on decision making under the CMIA:
  • a lack of appropriate secure accommodation for people with an intellectual disability or other cognitive impairment who are made subject to supervision, which can result in people being accommodated in prison or being placed on a non-custodial supervision order rather than a custodial supervision order
  • a lack of intermediate secure mental health facilities for forensic patients, which can result in people with a mental illness being returned to a high-secure mental health facility (Thomas Embling Hospital) due to a breach of a condition of their
    non-custodial supervision order.

Accommodation for people with an intellectual disability or other
cognitive impairment

  1. 11.66 As discussed at [11.24]–[11.28], to access accommodation facilities people with an intellectual disability or other cognitive impairment who are subject to a custodial supervision order need to meet the criteria for admission to a residential treatment facility or residential institution under the Disability Act.71 The admission criteria mean that a person may only be admitted to a residential treatment facility where they pose a risk of violence to others, have an intellectual disability and need to be detained for a period less than five years. A person will only be admitted to a residential institution where the residential institution provides the best possible choice of services for that person and they pose a risk of serious physical or emotional harm to the person with whom they currently reside unless they are admitted to the residential institution. Another issue related to accommodation is that people with an intellectual disability on a non-custodial supervision order may be subject to higher levels of restriction than people with a mental illness on a non-custodial supervision order because of the nature of available facilities
    in the disability system.

Lack of a specialised facility and limited appropriate options

  1. 11.67 There is no specialised facility for forensic residents and the appropriate accommodation options are limited for people with an intellectual disability or cognitive impairment
    under the CMIA. While secure accommodation facilities for people with an intellectual disability or cognitive impairment are provided by the Department of Human Services, people on supervision orders under the CMIA rarely meet the admission criteria because of their type of disability, level of risk, or because their need for services differs from
    what is provided.
  2. 11.68 Artificial decision making could occur where people who should be placed on a custodial supervision order are made subject to a non-custodial supervision order because of a
    lack of appropriate accommodation. In these circumstances, resources drive decision making rather than clinical practice and risk management. The following cases illustrate this problem.
  3. 11.69 In the recent case of R v Coulter,72 Mr Coulter, who has an acquired brain injury, was found unfit to stand trial by a jury and was then found to have committed the offence of murder at a special hearing. Coulter was made subject to a custodial supervision order after being assessed as a high to medium risk of violent reoffending. However, Coulter was also assessed as being unsuitable for a residential treatment facility or residential institution under the Disability Act. As there was no other appropriate accommodation, Coulter was committed to custody in prison, the judge stating that ‘[i]n the absence of an appropriate place, I am satisfied that there is no practicable alternative but to order that you be committed to custody in prison’.73 In the Commission’s view, this is not an appropriate outcome for a person with a cognitive impairment who has been found
    unfit to stand trial.

 

  1. 11.70 The case of DPP v Bamblett74 involved an accused who was charged with armed robbery, found unfit to stand trial and found to have committed the offence at a special hearing. The judge was advised by the Department of Human Services that there were no appropriate custodial facilities for the accused. The judge took into account that the accused had committed armed robbery while subject to a previous non-custodial supervision order. However, given that prison was the only option if a custodial supervision order were to be imposed and given the court’s view that the service where he was currently residing provided ‘sufficient supervision and an extensive rehabilitative program’, a non-custodial supervision order was imposed.75
  2. 11.71 Another case example where there was no service available to provide supervision or services was provided by the Office of Public Prosecutions. This case involved a person who had a severe and permanent language disorder and was found unfit to stand trial, and found to have committed the offences charged at a special hearing. The person did not meet the eligibility criteria for disability services as they did not have an intellectual disability; the options open to the judge were to unconditionally release the person or declare them liable to supervision and impose a custodial supervision order. The effect of the latter order would have been that the person would be detained on an indefinite order in prison.

Views in submissions and consultations

Lack of appropriate accommodation options for people with an intellectual disability or other cognitive impairment under the CMIA
  1. 11.72 A number of consultation meetings conducted with Department of Human Services case workers highlighted concerns that many decisions about supervision orders for people with an intellectual disability are being made on the basis of resource availability rather than risk management and clinical advice.76 The Commission was informed of a number of examples where secure supervision and services were required for a person but due to a lack of available facilities and services, they were placed on a non-custodial supervision order because this was the only alternative to prison.77 The Commission was also informed in consultations with Department of Human Services staff that where existing accommodation options are not appropriate for people on supervision orders under the CMIA, all possible steps are taken to find or create individual accommodation solutions for people.78
  2. 11.73 Almost all submissions and consultations on this issue voiced strong concerns about
    the lack of appropriate accommodation for people with an intellectual disability under
    the CMIA.79

 

  1. 11.74 The Victorian Equal Opportunity and Human Rights Commission was of the view that
    a lack of appropriate accommodation for people with an intellectual disability under
    the CMIA constitutes a breach of Article 5(3) of the Convention on the Rights of Persons with Disabilities:

Placing a vulnerable person with a disability in an inappropriate place without the specialised services required for their management and treatment is inconsistent with
the right to equality and to be provided with the necessary adjustments and support
a person with a disability may need to enjoy their human rights on an equal basis
with others.80

  1. 11.75 A lack of accommodation was raised as an issue in both regional and metropolitan Victoria, and issues in finding appropriate accommodation were identified for people on both custodial and non-custodial supervision orders.81
  2. 11.76 This concern about the lack of appropriate accommodation for people on a non-custodial supervision order was highlighted in the following case example provided by the Office of the Public Advocate:

Case study: Mr D

Mr D, a man with a moderate to severe intellectual disability and paranoid schizophrenia was charged with minor offences. Mr D was found unfit to plead on the basis of mental impairment and was remanded in prison waiting for Disability Services supported accommodation. In prison, Mr D’s behaviour became very difficult to manage because he was unable to understand why he was there or that he had to comply with prison regulations like providing a urine sample on demand. At regular hearings held during the months he spent in remand, Disability Services told the court they still had no supported accommodation for him. Mr D was being held in seclusion for 23 hours each day, was shackled during his one hour out of seclusion and was sedated to manage his behaviour. The judge threatened to subpoena the Department of Human Services Secretary if appropriate accommodation was not found within 10 days. Mr D was placed in supported accommodation a few days later. In total, Mr D was imprisoned for one year. As a result of his prison experiences, Mr D became agoraphobic, depressed and now shows signs of post-traumatic stress disorder.82

  1. 11.77 The Office of Public Prosecutions identified that there are no custodial facilities for people with an intellectual disability who do not ‘present a serious risk of violence’ because this requirement is part of the admission criteria to a residential treatment facility or institution under the Disability Act.83 This was noted in a consultation with Department of Human Services case workers, who explained that the only secure custodial facilities for people with an intellectual disability are the Intensive Residential Treatment Program provided by DFATS and the Long Term Rehabilitation Program at Plenty Residential Services or prison.84

 

  1. 11.78 In a consultation with Department of Human Services case managers, the Commission was informed that if a person does not meet the criteria for admission to the Intensive Residential Treatment Program provided by DFATS, another possible accommodation option is the Long Term Rehabilitation Program at Plenty Residential Service, where there are only five beds available. It was explained to the Commission that the Long Term Rehabilitation Program caters mainly for people on a non-custodial supervision order who are ‘problematic clients’ who require supervision but cannot be held in prison.85 The only remaining options for people with an intellectual disability under the CMIA if they are not suitable for admission to either the Intensive Residential Treatment Program provided by DFATS or the Long Term Rehabilitation Services are prison, a limited number of houses provided by the Australian Community Support Organisation, or creating a solution for the person in the community.86
  2. 11.79 The Commission was also informed that community-based accommodation is the only option for people on a non-custodial supervision order as ‘very few people are suitable for long-term residential placement at Plenty Residential Service’.87
Unsuitability of group accommodation options for forensic residents
  1. 11.80 A number of other practical difficulties arise in finding appropriate accommodation
    for people with an intellectual disability under the CMIA. These include considerations about the need to keep the person close to their family, friends and local community,
    the person’s risk to the community, the vulnerability of the person on the order
    and the vulnerability of other people with a disability who are residing in the
    same accommodation.
  2. 11.81 The practical difficulties in finding appropriate accommodation for this group of people were outlined in consultations with staff of the Department of Human Services.
  3. 11.82 In particular, it was noted that the model in disability care is group home living, so in determining suitability of a service and issues of vulnerability, consideration may need
    to be give to the compatibility of residents.88 If a person on a supervision order is
    non-sociable or violent, it is not appropriate for them to share accommodation with other vulnerable people with disabilities, and so group living may not always be suitable.89
  4. 11.83 It was also noted that in relation to people with acquired brain injuries, it is unclear whether a residential treatment facility is a suitable model for them and that it is important to continue to monitor service models to ensure they respond to the people
    to whom they are targeted. The Commission was informed that the Department of Human Services takes an individualised approach to supports for all clients involved in the criminal justice system, but there is significant variability in the needs of people with acquired brain injury, and these are not always consistent with the approaches for
    people with an intellectual disability. 90
  5. 11.84 One Department of Human Services case worker explained that it is always difficult to find accommodation options for people on non-custodial supervision orders in terms of both the length of time that can be spent at the facility and the appropriateness of the accommodation for the person’s needs.91 The case worker also noted that accommodation options for people with an intellectual disability are scarce and it is important to find accommodation for people under the CMIA with other residents ‘who have more skills and communication ability and are less vulnerable’.92
Effects of the limited appropriate accommodation options
  1. 11.85 The Commission was informed in a consultation with the Department of Human Services case workers that there are particular difficulties finding appropriate services for people on non-custodial supervision orders in regional areas, and finding culturally appropriate services that may be required as part of the conditions of the supervision order,
    for example, drug and alcohol treatment services.93
  2. 11.86 A participant in a meeting with the Disability Forensic Assessment and Treatment Service and the Long Term Rehabilitation Program explained that where a suitable accommodation option cannot be found, there is a need to create an option with the services available and that this ‘does not set the person up’ to have a good outcome.94
  3. 11.87 Another Department of Human Services case worker explained that a lack of accommodation options can affect the overall supervision of people with an intellectual disability under the CMIA, particularly when they breach the conditions of the supervision order. Due to the lack of custodial accommodation options, when a person breaches their non-custodial supervision order, generally the only option is to continue with the existing level of supervision.95
  4. 11.88 The Australian Community Support Organisation suggested that a lack of appropriate accommodation may be contributing to continuing offending behaviour, as without ‘targeted support’, such as facilities with the appropriate combination of specialist support services, resources and forensic experience to cater for this population’s criminogenic needs, a cycle of offending can result.96
  5. 11.89 To illustrate the effect of the lack of appropriate accommodation options, the Victorian Equal Opportunity and Human Rights Commission provided a case study in their submission. A modified version is presented below:

Case study: R v AO [2012] VCC 904

AO was a young person with a permanent intellectual disability who was charged with 13 theft offences and was found unfit to be tried under the CMIA … the County Court made AO subject to a non-custodial supervision order with a nominal period of five years, which included a condition that AO live in a residential care facility.

Shortly after the order was made, AO absconded from the facility, was arrested and charged with further shop theft offences and placed on remand in Port Phillip Prison. In March 2012, the Court varied the order but AO absconded again. In May 2012, AO was found unfit to stand trial under the CMIA and following a special hearing was found to have committed the offences charged. Following the plea hearing, the Court released AO on bail with a condition he reside at another residential care facility, however AO absconded again and bail was revoked.

In June 2012, in deciding whether to declare AO liable to supervision under section 26 of the CMIA, the judge observed that it had not been possible to find an accommodation facility that met AO’s needs or resulted in compliance with any residential conditions. AO was incapable of complying with a non-custodial order but because there was no appropriate custodial service, a custodial order would result in AO spending a nominal period of five years in an adult prison, which would not benefit him and only ‘add another layer to [his] potential institutionalisation in prison.’

 

In the absence of an appropriate service, Judge Gullaci concluded the only appropriate sentence in the circumstances was to discharge AO unconditionally. Although AO’s chronic offending was ‘a constant thorn in the side of organisations which operate supermarkets and the police who are required to process him, if not daily then on a weekly basis’, AO did not pose any danger to the community and was not a violent
or sexual offender.97

The need for specialised accommodation options for forensic residents
  1. 11.90 The Office of the Public Advocate proposed that the Department of Human Services provide additional resources to eliminate delays in prison or on remand for people with
    an intellectual disability.98
  2. 11.91 In considering what is required in terms of accommodation for people with an intellectual disability under the CMIA, staff from the Disability Forensic Assessment and Treatment Service and the Long Term Rehabilitation Program suggested that there is a need for a ‘strengthened model of accommodation’ to address issues in the workforce and the environment to better support people on supervision orders.99
  3. 11.92 In further considering the type of facility that may be required, staff consulted by the Commission from the Disability Forensic Assessment and Treatment Service and the
    Long Term Rehabilitation Program suggested that a locked facility may not be required but rather a specialised service to support people in the justice system whose staff have
    a good understanding of reporting requirements, legal processes and conditions of supervision orders.100 One participant at the consultation commented that the Long Term Rehabilitation Program is well supported from both a clinical and departmental perspective and there is a large group of people who oversee the service and provide
    a high level of support which benefits the residents.101

The Commission’s conclusion

  1. 11.93 The Commission is of the view that there are barriers to people with an intellectual disability or other cognitive impairment accessing existing facilities. Further, the accommodation options that are currently available are not always appropriate for people with an intellectual disability or other cognitive impairment.
  2. 11.94 The Commission supports the principle outlined in Article 14 of the Convention on the Rights of Persons with Disabilities which states that:

if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and
principles of this Convention, including by provision of reasonable accommodation [emphasis added].102

 

  1. 11.95 There is evidence that these barriers have had a number of consequences in cases that have involved people with an intellectual disability or other cognitive impairment under the CMIA. They have:
  • affected decision making regarding the level of supervision of people subject to
    the CMIA
  • resulted in circumstances that are inconsistent with community safety
  • caused harm and trauma to vulnerable people in the criminal justice system.
  1. 11.96 The Commission’s view is that such consequences are inconsistent with the just operation of the CMIA. They are inconsistent with the underlying principles of the CMIA to uphold community safety within a therapeutic approach. The Commission has therefore formed the view that change is required to address the lack of appropriate accommodation options for people in this cohort.
  2. 11.97 An increase in capacity in existing disability services does not present a complete solution to the problem. In some cases, the needs and risks of people who are subject to supervision orders cannot be adequately and appropriately addressed within existing disability services. In some cases, a specialised option that is appropriate to the treatment needs and risks posed in the particular case is required; for example, cases involving people with co-morbidity or dual diagnoses, such as an intellectual disability and a
    mental illness combined with substance use, or cases involving people with conditions that are not an intellectual disability, such as acquired brain injuries, autism spectrum disorder or dementia.
  3. 11.98 The Commission is of the view that further examination of this gap in services is required by the Department of Human Services to monitor current service models, develop new service models for the particular populations who become subject to the CMIA and to generally support cases where specialised service provision is required.
  4. 11.99 The Commission acknowledges that a significant amount of work is being undertaken, both in Victoria and at a federal level, to address the inequalities faced by people with
    an intellectual disability or other cognitive impairment in contact with the criminal
    justice system.
  5. 11.100 People with an intellectual disability or other cognitive impairment subject to supervision orders under the CMIA should be able to access appropriate accommodation and be provided with services and treatment tailored to their individualised needs. Access to appropriate accommodation is consistent with Article 14 of the Convention on the Rights of Persons with Disabilities. The establishment of an appropriate forensic facility would be a significant step towards equality under the law for people with an intellectual disability or other cognitive impairment, with people with a mental illness on a supervision order under the CMIA.

Recommendation

98 The Department of Human Services should commission a review of current forensic disability services to identify appropriate models of care and the accommodation needs of people with an intellectual disability or other cognitive impairment who are subject to supervision orders under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

The review should include an analysis of the cost of any recommendations regarding appropriate models of care and accommodation needs.

 

Cost implications

  1. 11.101 The Commission acknowledges that implementation of the above recommendations will have resource implications. However, the current practice that the Department of Human Services adopts in some cases, of building and resourcing individual accommodation solutions for people on supervision orders under the CMIA on an ad hoc basis, is also
    very resource-intensive.
  2. 11.102 The Commission is of the view that these resources can be better used by undertaking work to determine the needs of the forensic disability population and the most
    effective approach in deploying departmental resources to provide appropriate services and supervision.
  3. 11.103 Providing specific information on the cost of establishing appropriate accommodation
    for people with an intellectual disability or other cognitive impairment is beyond the scope of this reference. There are a number of complexities involved in establishing appropriate accommodation options including work on developing models of care for people with an intellectual disability or other cognitive impairment subject to supervision orders under the CMIA to address issues particular to the forensic disability population.

Managing breaches of supervision orders

CMIA provisions governing breaches of a supervision order

  1. 11.104 The CMIA outlines the process for managing a person who has breached a condition of their supervision order. Where it appears that a person has failed to comply with the conditions of a supervision order, the person responsible for their supervision may apply to the court for a variation of that order.103 Once the court is satisfied that the person has failed to comply with the order, the court may confirm the order, vary the conditions of the order or vary the order to a custodial supervision order.104
  2. 11.105 Where a person subject to a non-custodial supervision order becomes a serious risk to themselves or others, the CMIA provides that the person can be apprehended using an emergency power of apprehension.The person must:
  • have failed to comply with the non-custodial supervision order, and
  • be a serious danger to their own safety or public safety.105
  1. 11.106 People responsible for the supervision of the person subject to the supervision order (‘supervisors’) use the emergency power when they need to apprehend the person as a matter of urgency and it would be inappropriate to wait for a court decision.106 Members of the police force, ambulance officers and other mental health service providers may
    also use the emergency power of apprehension.107
  2. 11.107 If an application to vary an order is not made within 48 hours of the emergency apprehension or the person’s arrest, the person must be released.108
  3. 11.108 The court may order a warrant for the arrest of a person subject to a non-custodial supervision order if they fail to attend the hearing (in situations where the person is
    not already in detention).109

 

  1. 11.109 People on non-custodial supervision orders may travel out of Victoria if they have the permission of their supervisor.110 However, where a person on a non-custodial supervision order leaves Victoria without permission, they fail to comply with the supervision order and can be arrested.111 The supervisor, the Secretary to the Department of Health or the Secretary to the Department of Human Services may apply for a warrant to arrest the person subject to the non-custodial supervision order.112
  2. 11.110 The officers may also apply for a warrant of arrest if a person is absent without leave while on a custodial supervision order and has left Victoria.113

Managing breaches of non-custodial supervision orders

  1. 11.111 People with a mental illness on a custodial supervision order reside at Thomas Embling Hospital. The hospital is a 116-bed secure hospital with seven accommodation units covering acute, sub-acute, continuing care and rehabilitation, and includes a separate women’s unit.114
  2. 11.112 Thomas Embling Hospital provides both secure accommodation and 16 low security beds that are used for stable patients who are accessing extended leave to assist in transitioning them back into the community.
  3. 11.113 Forensicare advised that 67 per cent of Thomas Embling’s patients are forensic patients. However, many of these patients are stable and lower risk and could be accommodated in a medium-secure environment.115 There is currently no medium-secure environment for people with a mental illness who are subject to supervision orders under the CMIA.
  4. 11.114 A medium-secure facility may assist in transitioning people from Thomas Embling Hospital into the community. It may also provide an alternative for people who have breached the conditions of their non-custodial supervision order and are currently returned from the
    community to the secure environment of Thomas Embling Hospital.
  5. 11.115 This is particularly important when managing people who may have breached a condition of their non-custodial supervision order. A person can fail to comply with a non-custodial supervision order for various reasons, for example, by missing appointments with the treating team, refusing to participate in programs or using alcohol or illicit drugs
    (where this is in breach of a condition of the non-custodial supervision order).116
  6. 11.116 When Forensicare is supervising a person subject to a non-custodial supervision order and there is a concern that the person is breaching the conditions of their non-custodial supervision order, the approved mental health service providing treatment to the person must contact the authorised psychiatrist of Forensicare immediately.117 Forensicare and
    the area mental health service will then together decide how to deal with the issue.118
  7. 11.117 Where it is reasonably suspected that a person has failed to comply with the conditions
    of their non-custodial supervision order, they may be apprehended.119 Within 48 hours
    of apprehension, the person must either be released or an application must be made
    to have their non-custodial supervision order varied to a custodial supervision order. Where a custodial supervision order is made, the person must reside at the only secure facility currently available, Thomas Embling Hospital.

 

  1. 11.118 The consultation paper sought feedback on whether there is a need for more guidance to those responsible for the supervision of people on supervision orders in dealing with the failure to comply with a non-custodial supervision order, and the best way for such guidance to be provided.

Forensic capacity in services which manage breaches of supervision orders

  1. 11.119 Forensic mental health services have expertise in managing people with a mental illness who have a history of criminal offending, and they aim to address the relationship between mental illness and crime. While Forensicare has forensic mental health expertise in supervising people on custodial supervision orders under the CMIA, area mental health services who supervise people on non-custodial supervision orders generally have expertise in managing mental illness rather than forensic mental health.
  2. 11.120 The Forensic Clinical Specialist Program aims to enhance the capacity and expertise of the mental health workforce to manage people with mental illness who engage in criminal offending. Forensic Clinical Specialists work with area mental health services to improve outcomes for this cohort and reduce the risk associated with their offending or re-offending by proving advice and consultation, education and training and quality improvement.120
  3. 11.121 There is no equivalent Forensic Clinical Specialist Program in the disability sector.

Views in submissions and consultations

  1. 11.122 Submissions and consultations identified two main issues regarding the management of breaches of supervision orders by people with a mental illness:
  • The current provisions of the CMIA are not sufficiently clear on the extent of the
    non-compliance required before action must be taken to apprehend the person subject to the supervision order. Making decisions about managing a person who may have breached a condition of their supervision order is difficult, and varying an order to a custodial supervision order has serious implications for the person’s
    overall recovery.
  • Incorporating more flexibility in terms of accommodation options and the type of order that can be made may assist in supporting the person and be more consistent with recovery-orientated practice.
Flexibility in managing breaches of supervision orders
  1. 11.123 There was a strong view expressed in submissions and consultations that there should
    be greater flexibility in managing breaches of supervision orders under the CMIA.121
  2. 11.124 The need for a medium-secure facility for people with a mental illness to more effectively deal with breaches of non-custodial supervision orders was highlighted in submissions and consultations.122
  3. 11.125 One participant in a meeting with Forensic Clinical Specialists explained that decisions about whether a person has breached the conditions of an non-custodial supervision order are difficult and an ‘intermediate step’ between Thomas Embling Hospital and the community would assist in better managing people in these circumstances.123

 

  1. 11.126 A judge of the County Court of Victoria expressed a view that a relapse does not in itself mean a person should be sent back to custody.124
  2. 11.127 One person on a custodial supervision order commented that returning to a custodial environment after breaching the conditions of a non-custodial supervision order can have an unnecessarily negative effect on a patient’s overall recovery. The person advocated for more flexibility in the system and developing more proportionate responses to breaches of orders. The person talked about the effect that returning to a custodial environment can have on recovery. If a person breaches an order they can ‘end up back in an acute unit which may make [you] worse because you are with people who are more unwell than you are’. The person described the process as ‘being under the microscope … for little mistakes there are such big consequences—when you have worked so hard on your mental illness’.125
  3. 11.128 Forensicare expressed a similar view:

[a] variation to a custodial supervision order would effectively set the person back
two stages in that, once on a custodial supervision order, the person would need to
go through the graduated process of applying for extended leave before regaining
a non-custodial supervision order.126

  1. 11.129 Victoria Legal Aid was of the view that the requirement to vary a person’s order back to a custodial supervision order following a breach disrupts the ‘pathway towards gradual reintegration’ and it can take years for the person to be placed on a non-custodial order again which results in delays that are costly and ‘may ultimately be counter-therapeutic’.127
  2. 11.130 A Forensic Clinical Specialist supported this view, stating that a lack of flexibility in conditions for non-custodial supervision orders can set people up for failure.’128
    One participant in a separate meeting with Forensic Clinical Specialists also advocated
    for more flexibility in the system and explained that sometimes supervisors ‘work around the system’ to avoid a severe outcome.129
  3. 11.131 Victoria Legal Aid suggested that section 30(4) of the CMIA should allow a court the discretion to ‘delay or adjourn proceedings where a person has not complied with their non-custodial supervision order’.130 Forensicare supported this view, arguing that the current process is ‘artificial and inappropriate’ and that the time provided by a delay or adjournment can provide the opportunity to stabilise a person and address the factors that led to the person breaching a condition of the order.131 Forensicare explained that
    in the majority of cases, a period of three months is sufficient to allow the treating team to determine the person’s risk and treatment. In more complex cases, up to 12 months may be required to establish an appropriate treatment plan.
  4. 11.132 Forensicare and Victoria Legal Aid also supported changes to allow a non-custodial order to be suspended temporarily while the person is placed on a custodial order and assessed and for the supervision to be lifted where it is considered that the person can once again be managed in the community.132 Forensicare noted that the CMIA is unclear about whether they have the power to discharge a person back into the community on a non-custodial supervision order after they have been apprehended for a breach and assessed as manageable in the community. Forensicare noted that introducing similar provisions in the CMIA that allow a suspension of extended leave to be lifted would assist in managing these situations.133
Enhancing the forensic capacity of the mental health and disability workforce
  1. 11.133 In consultations, mental health clinicians and Department of Human Services case workers raised concerns about the requirement for reporting breaches of supervision orders and about their expertise to undertake this task. There was also a general lack of clarity on the information that should be included in the annual mental condition report to the court.134
  2. 11.134 One mental health clinician in a meeting with an area mental health service stated that the roles and responsibilities in supervising people on supervision orders are unclear and proposed that non-custodial supervision order plans should ‘more robustly’ set out the conditions of the order and what would happen if those conditions were breached.135 Another mental health worker supported this view, suggesting that orders should advise the area mental health service what it should be reporting on in terms of breaches because it is unclear what triggers reporting of the breach, what issues should be dealt with by the service and what the service is responsible for should something go wrong.136
  3. 11.135 An example was provided by a participant in consultations with staff of an area mental health service where a condition of a person’s non-custodial supervision order was to abstain from alcohol. An area mental health service is only concerned about the person’s mental health, and while they were aware that consumption of alcohol was a risk factor to the person’s offending, it was not a risk factor for the person’s mental health.
    The participant suggested that greater clarity is required as to whether services should report to Forensicare on mental health risk factors or all risk factors.137
  4. 11.136 Similar views were expressed by Department of Human Services case workers who saw a conflict between their therapeutic role and their role in supervising the conditions of an order. They found managing breaches to be difficult because they are providing supervision but are not corrections officers.138 For example:
  • One case worker commented that they were not clear about what to do when their client breaches the conditions of their supervision order.139 One case manager advised that usually they write up any breaches in their report and raise the issue at the client’s 12-month review. However, at other times they may advise the legal team in the Department of Human Services or inform the judge’s associate.
  • One case worker reported that they found that in many situations there were no consequences for a person who had breached a condition of their supervision order, describing the supervision process as ‘meaningless’.140
  1. 11.137 In a consultation with Department of Human Services staff, it was suggested that workforce development through policy and practice advice could assist to provide guidance on how to manage the interface between a therapeutic and supervisory role.141
  2. 11.138 Forensicare, however, suggested that there was no need to provide additional guidance to mental health workers who are supervising people on orders. This was because any attempt to further define the extent of non-compliance required before action must be taken:

risks creating circumstances where Forensicare is legislatively required to apprehend a person or apply for variation of their order despite a clinical view that the person remains manageable on a non-custodial supervision order.142

 

  1. 11.139 Victoria Legal Aid recommended that a more therapeutic response be adopted for people who breach the conditions of a non-custodial supervision order. The following case example was provided to illustrate a possible approach to managing breaches under the CMIA that involves the use of civil mental health orders:

Case study: Jacob

Jacob was found not guilty because of mental impairment of intentionally causing serious injury and armed robbery, and was placed on a Non-custodial Supervision Order (NCSO) with a nominal term of 20 years.

While living in a supported facility, Jacob started binge drinking regularly in breach of
his order, damaged property, was verbally threatening to staff, stopped participating
in rehabilitation, had limited insight into his schizophrenia and experienced some psychotic symptoms.

He was admitted as an involuntary patient under the Mental Health Act to Thomas Embling Hospital, rather than Forensicare applying to vary back to a custodial order under section 29 of the Act.

He spent seven months as an inpatient. In June 2011, he was discharged straight back to NCSO [non-custodial supervision order] and commenced living with his parents and getting treatment from the local area mental health service. In August this year, his application to have his NCSO revoked was successful. He was mentally stable, had developed good insight, and was drinking much less alcohol. Had his NCSO been revoked he would have had to go right back to seeking leave from the Forensic Leave Panel, then extended leave, then a non-custodial order.143

The Commission’s conclusion

  1. 11.140 The Commission supports the view that greater flexibility is required in the CMIA system to manage breaches of conditions of supervision orders in a way that promotes the recovery of the person.
  2. 11.141 A medium-secure facility would assist in managing people who do not require a secure environment as they transition in and out of the community in their process of recovery. Establishing a medium-secure facility for people with mental illness would also allow resource-intensive services and facilities in a secure hospital environment to be directed
    to those most in need.
  3. 11.142 The Commission also supports changes to section 30(4) of the CMIA to allow for judicial discretion in varying a non-custodial supervision order to a custodial supervision order in response to a breach of a supervision orders. This will allow clinical decision making to occur in the best interests of both the patient and the community.
  4. 11.143 Allowing an application for variation of a non-custodial supervision order to be adjourned for a period of up to 12 months will allow for flexibility in managing people who have breached a condition of their non-custodial supervision order. Rather than the person going back onto a custodial supervision order immediately, the person can receive treatment, services or support to stabilise their condition so that they may return to the community. Where a person needs to be in a custodial or secure environment, they could be admitted to Thomas Embling Hospital under an order under the MHA 2014, or be made subject to a compulsory order under the Disability Act.

 

  1. 11.144 The Commission acknowledges the views of mental health workers and Department of Human Services case managers that greater clarity is needed in the requirements of supervising people on orders under the CMIA. The Commission also notes Forensicare’s view that legislative guidance may further limit flexibility in managing people on supervision orders. The Commission is therefore of the view that guidelines are an appropriate mechanism to assist mental health workers and disability case workers supervising people under the CMIA in making decisions about breaches of supervision orders. The guidelines should be developed by the Department of Health and the Department of Human Services to provide guidance to people who may not have forensic mental health or forensic disability expertise but are responsible for supervising people under the CMIA.
  2. 11.145 The Commission also notes that work is currently being undertaken by the Department of Health and the Department of Justice in Victoria as part of the Forensic Mental Health Service Planning Project. The aim of this project is to ‘recommend a service configuration for forensic mental health services, underpinned by a clinically effective and cost effective model of care, to appropriately respond to future service demand’.144
  3. 11.146 The Forensic Mental Health Service Planning Project is looking at models of service provision that will affect people on supervision orders under the CMIA.
    Any recommendations made as part of this project will also affect recommendations made in this report.
  4. 11.147 The Commission is of the view that changes are required to improve the ‘forensic capacity’ of the mental health and disability sectors to better accommodate the needs and manage the risks of people subject to supervision orders under the CMIA. Improvements have already resulted from the Forensic Clinical Specialist Program and the forensic capacity of mental health workers could be further enhanced by expanding this program so that forensic clinical specialists are available in all area mental health services. The Commission also acknowledges the work that is currently being undertaken by the Department of Human Services to develop disability forensic expertise through implementation of initiatives such as the Online ‘Disability Forensic Practice Framework’, the Workforce Learning and Development program, dedicated liaison positions and the provision of funding for departmental frontline staff to undertake further studies in advanced disability practice. The Commission recommends that this work be built on to enhance the forensic capacity of disability services.145

Recommendations

99 The following amendments should be made to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to allow for greater flexibility in managing people who have breached the conditions of their non-custodial supervision order:

(a) Section 29(4) should be amended to allow the court to adjourn an application under section 29(1) for variation of a supervision order for a period not exceeding 12 months where the court is satisfied by evidence on oath, whether orally or by affidavit, from the supervisor, the Department of Human Services or the Department of Health that, having regard to the person’s risk, a period of assessment and treatment is appropriate prior to consideration of the application to vary the
non-custodial supervision order to a custodial supervision order.

 

Recommendations contd

(b) Section 30(4) should be amended to create an exception to the requirement that a person detained under this section be released within 48 hours if an application has been made and a court has made an order adjourning the application to vary the supervision order.

(c) Section 30 should be amended to provide a power for the authorised psychiatrist of the approved mental health service or the Secretary to the Department of Human Services to authorise the release of a person from detention following an application under section 29(1) and prior to the court hearing an application under section 30(4).

100 A new medium-secure forensic mental health facility should be established as an approved mental health service for adults with a mental illness who are subject to supervision orders under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

101 The Department of Health and the Department of Human Services should develop workforce strategies to increase the capacity of the general mental health and disability sectors to undertake forensic mental health and disability work. Such strategies could include the development of guidelines on decision making in relation to supervision orders.

 

Cost implications

  1. 11.148 The Commission acknowledges that the establishment of a medium-secure forensic mental health facility will have significant resource implications.
  2. 11.149 While the Commission is mindful of this, it is not in a position to cost such a facility given the variables involved, such as the location of the facility, the number of beds required, the needs of the patients and the security requirements. The work currently being undertaken as part of the Forensic Mental Health Service Planning Project may assist in providing greater detail on the accommodation needs of the forensic mental health population and the resources required to meet that need.
  3. 11.150 Given the potential for changes as a result of any recommendations that may be made in the Forensic Mental Health Service Planning Project, consideration of the resource implications of Recommendation 100 should occur after the report on the project has been provided to the Department of Health and Department of Justice. This will enable a full and proper consideration of this recommendation in the light of any changes that may be recommended on the model of service provision.
  4. 11.151 The changes proposed under Recommendation 99 to provide more flexibility in responding to breaches of supervision orders have the potential to produce resource savings through reducing the time supervised people spend in custody. If a person who breaches a supervision order can be stabilised after a period (of up to 12 months) of assessment and treatment while under detention without having their non-custodial supervision order varied to a custodial supervision order, such people may be detained for shorter periods. The provision of the power to adjourn the application to vary the non-custodial supervision order to a custodial supervision order means that the person can be released under the non-custodial supervision that has remained in place and will not be required to go through the extended leave process. In such cases, this could result in a significant reduction of the resources required for custodial supervision in Thomas Embling Hospital.
  5. 11.152 Forensicare advised the Commission that the cost per patient is $588.83 per day for the year to February 2014. This covers both treatment and supervision.146 No formal costing has been undertaken by Forensicare of the non-custodial supervision order program.
  6. 11.153 Further, if Recommendation 100 is adopted and there is a medium-secure facility, this could also provide a more economical custodial option for people who are detained following apprehension for a breach of a supervision order and who do not require the high security environment of Thomas Embling Hospital.

Police contact with people subject to supervision orders

  1. 11.154 Police officers may come into contact with people on supervision orders in apprehending a person who absconds from a facility without leave or who has breached the conditions of their supervision order. Police officers may also come into contact with people in the community on non-custodial supervision orders for a range of other reasons, for example, if the deterioration of their mental condition leads to behaviour that may pose a risk to themselves or others.

Views in submissions and consultations

  1. 11.155 An issue that arose in a consultation with representatives of Victoria Police was the lack of easily accessible information for police officers when interacting with people who may be on a supervision order.
  2. 11.156 A police officer may not be aware that a person is subject to a supervision order under the CMIA when they come into contact with them in the community. In a meeting with Victoria Police, the Commission was informed that the fact of a person being on a CMIA supervision order or finding of ‘not guilty because of mental impairment’ does not currently show up as a ‘flag’ on Victoria Police’s Law Enforcement Assistance Program (LEAP) screen.147
  3. 11.157 The LEAP system includes a module (the ‘attendance module’) whereby a person can be flagged as being on a particular sentence or on parole. The LEAP system is used by police officers in operational police work when they apprehend or arrest a person. By entering that person’s name into the LEAP database, a flag will appear if they are on a particular order. As one member of Victoria Police explained, a police member would need to ‘dig deeper’ through LEAP to be alerted about a person being subject to a supervision order and this is not done in practice.148 Victoria Police advised that the main way the police member can be made aware of the information is if the person volunteers it, and this
    can then be added to the LEAP system, but it does not provide an immediate flag.149

 

  1. 11.158 A member of Victoria Police stated that this was important because such information
    had a number of implications, including:
  • whether an application for remand is sought or bail opposed
  • where the person should be remanded (for example, in an ‘appropriate place’ such
    as Thomas Embling Hospital, a residential treatment facility or residential institution
    or prison)
  • how the person is interviewed by police
  • how the police officer assesses the risk of the situation
  • how the police officer approaches, responds and communicates with the person.150

The Commission’s conclusion

  1. 11.159 Victoria Police already have access to information about whether a person has been subject to the CMIA finding and order. This information is included in the LEAP database, but it is not currently captured in a way that allows it to be easily accessed so that a police officer can be immediately aware that a person may be subject to a CMIA order.
  2. 11.160 While this is an operational issue, the Commission is of the view that it is important for Victoria Police to be aware that a person they are in contact with is subject to a supervision order under the CMIA. This information will assist Victoria Police to
    respond to the person in the most appropriate way and also to ensure the protection
    of the community.
  3. 11.161 The Commission’s recommendation is not intended to broaden the information that is available to Victoria Police on people who are subject to supervision orders, but only to make a change to enable it to be accessed more readily by operational police officers
    who may have contact with people subject to the CMIA.

Recommendation

102 Victoria Police should add a flag to the ‘attendance module’ in the Law Enforcement Assistance Program (LEAP) database to enable data to be entered and accessed that will immediately notify a police officer that a person is subject to a supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

 

Suitability of the system for people with an intellectual disability or other cognitive impairment

Concerns about the system of management

  1. 11.162 There is relatively little information about the management and supervision of people with an intellectual disability or other cognitive impairment under the CMIA.
  2. 11.163 As at 30 June 2013, there were 30 people being supervised by the Department of Human Services (DHS) under the CMIA. Of these, there were 27 people on non-custodial supervision orders and three people on custodial supervision orders.151 Of these people, 63 per cent were clients who were already known to DHS prior to a supervision order being imposed152 and they range from 19 to 71 years of age.
  3. 11.164 Since the commencement of the CMIA there have been six revocations of supervision orders for people supervised by DHS, with one application for extended leave applied for and granted.153
  4. 11.165 In 2011–12 there were five applications to the Forensic Leave Panel for a combination of on-ground and limited off-ground leave. All five applications for leave were approved.154
  5. 11.166 Issues were raised in submissions and consultations about the supervision and management of people with an intellectual disability or other cognitive impairment
    under the CMIA.
  6. 11.167 In particular, concerns were raised about whether the principles of gradual reintegration, therapeutic focus and least restrictive alternative apply equally to people with an intellectual disability or other cognitive impairment. This position was explained by Ruffles who described people found not guilty because of mental impairment on the grounds of intellectual disability as ‘a forgotten sub-group of forensic patients for whom indefinite detention and supervision remains a likely consequence’.155 Ruffles argued that this raises:

serious questions as to whether it is appropriate to apply the same legal principles governing management and release to both mentally ill and intellectually disabled acquittees. The absence of research regarding intellectually disabled acquittees,
in both Australia and overseas, further compounds this invisibility status.156

  1. 11.168 While arrangements for mental health treatment for people on supervision orders are relatively well established, the same does not exist for people with an intellectual disability under the CMIA. Unlike people with a mental illness, people with an intellectual disability under the CMIA:
  • rarely have their supervision order revoked
  • lack a clear treatment pathway
  • are not subject to clinical oversight by the Senior Practitioner
  • lack secure accommodation facilities and accommodation options in the community.
  1. 11.169 The Victorian Parliament Law Reform Committee recommended that the Victorian Government ensure resources are provided for programs and services directed toward reintegration into the community and rehabilitation of offenders with an intellectual disability or other cognitive impairment.157
  2. 11.170 The Commission makes recommendations in this report that seek to address some of the concerns about the suitability of the CMIA for people with an intellectual disability or other cognitive impairment. These include:
  • The power to determine unfitness in the Magistrates’ Court—A power to determine unfitness in the Magistrates’ Court will mean that many people with an intellectual disability or cognitive impairment will no longer have to have their matters transferred to a higher court to be determined (Recommendation 27).
  • Discharge requirements in the Magistrates’ Court—A recommendation that the magistrate consider discharging an accused where a real and substantial question of unfitness is raised prior to a special hearing where the accused is receiving treatment, supports or services in the community and does not pose an unacceptable risk of harm to the community (Recommendation 28).
  • Modifications to the Presser criteria for determining unfitness—A recommendation that in determining whether a person is unfit to stand trial, the court must consider the extent to which modifications can be made to the hearing process to assist the person’s participation in the hearing. This recommendation aims to ensure that rather than finding a person unfit to stand trial, appropriate supports are provided to that person to enable them to participate in proceedings (Recommendation 18).
  • Changes to the number of parties to review hearings—DHS will no longer be required to adopt a legal position in relation to the review hearings and this will assist in maintaining the therapeutic relationship between DHS case managers and people with an intellectual disability or cognitive impairment (Recommendation 62).
  • Defining mental impairment—Providing a definition of mental impairment that includes intellectual disability and cognitive impairment clarifies the law in cases where it was previously unclear whether these conditions qualified for the defence of mental impairment (Recommendation 24).
  1. 11.171 This section includes the Commission’s recommendations to:
  • provide safeguards, a clear treatment pathway and clinical oversight for people with an intellectual disability on supervision orders
  • address inconsistencies between the Disability Act and the CMIA.

The staggered system of release and lack of a clear treatment pathway

  1. 11.172 The CMIA is modelled on a gradual or staggered system of release, based on the expectation that the person subject to the supervision order will recover and be reintegrated into the community. Some commentators have suggested that this gradual or staggered system of release was constructed for people with mental illnesses but is
    less suitable for people with an intellectual disability or other cognitive impairment.158
  2. 11.173 As noted at [11.168], it is rare for a person with an intellectual disability to have their supervision order revoked under the CMIA. A study looking at the management of people on supervision orders under the CMIA found that of the 10 forensic residents included in the study, ‘none had achieved revocation, despite three such acquittees being detained in a custodial setting for more than 10 years and two being detained for more than 15 years’.159

 

  1. 11.174 The study suggested that there is a perception that applications to revoke an order under the CMIA for a person with an intellectual disability will be unsuccessful.160 The reasoning for this was outlined as follows:

there is clearly a reluctance by intellectually disabled acquittees to even ‘test the waters’ which suggests there remains something about the machinery of the CMIA and/or its application that discriminates against the potential for intellectually disabled acquittees to move through its staggered system of release … Given that demonstration of such factors is largely beyond the capacity of intellectually disabled forensic residents,
it is hardly surprising and perhaps realistic that such acquittees appear to have assessed their prospects of moving through the CMIA system as negligible.161

  1. 11.175 One hypothesis proposed by Ruffles as the reason that people with an intellectual disability are less likely to progress through the system is the particular nature of the group of people with an intellectual disability who are made subject to supervision orders under the CMIA. Ruffles suggested that:

in the opinion of treatment providers who play a large role in determining when it is appropriate to apply for a variation in status, each individual forensic resident acquitted on the grounds of intellectual disability continues to pose a risk of serious endangerment either to themselves or the community and, therefore, continues to require judicial supervision at a particular level. This explanation may be supported by the fact that, interestingly, 50% of offences committed by intellectually disabled forensic residents occurred within an inpatient setting such as a hospital, institution or respite facility, as opposed to only 3.68% of offences committed by forensic patients found NGRMI [not guilty by reason of mental impairment] on the grounds on mental illness. Thus, in the case of half of the intellectually disabled forensic residents, it was deemed necessary and appropriate for them to be in care at the time leading up to the NGRMI offence, raising the possibility that the strict supervisory consequences of a NGRMI verdict simply represent a continuation of the status quo.162

  1. 11.176 However, there are a number of treatment programs available for people with an intellectual disability or other cognitive impairment. Many of these programs are based on modifications of treatment programs for people who offend, but do not have a mental condition. They include group and individual cognitive behaviour therapy programs and positive behaviour support programs.163
  2. 11.177 For example, one study looking at the long-term effects of cognitive behaviour therapy on people with acquired brain injury found that an 11-week cognitive behaviour therapy program can enhance community integration six months after cessation of treatment.164 Another study looking at men with an intellectual disability who participated in group cognitive behavioural therapy for sexually abusive behaviours found evidence of
    long-term effectiveness.165

Views in submissions and consultations

  1. 11.178 There was an overwhelming view expressed in submissions and consultations that
    people with an intellectual disability are not afforded the same treatment that is provided to people with a mental illness. One participant in the higher courts roundtable argued that the CMIA creates significant differences between the way that people with a
    mental illness are treated under the legislation and the treatment of people with an intellectual disability.166
  2. 11.179 It was suggested that people with an intellectual disability on a non-custodial supervision order tended to be on orders for a longer period of time than people with a mental illness. The Department of Human Services Senior Practitioner commented to this effect and said that there is a ‘lack of rigour’ in applying the system to people with an intellectual disability and that the system needs to ‘mirror the pathway’ of people with
    a mental illness for people with an intellectual disability under the CMIA.167
  3. 11.180 Concerns were also raised about the suitability of the staggered system of release under the CMIA for people with an intellectual disability. One participant in a consultation with judges of the Supreme Court commented that the system does not cater well for people with an intellectual disability and assessments and outcomes clearly differ between mental illness and intellectual disability.168
  4. 11.181 The static nature of an intellectual disability was also discussed. Concerns were raised about the appropriateness of the staggered or gradual system of release under the CMIA for a person with an intellectual disability. As Victoria Legal Aid highlighted, the current system discriminates against people with an intellectual disability as they are unlikely to be able to demonstrate that they have sufficiently progressed with treatment and therefore may never progress through the system and ‘will languish on supervision orders for a potentially indefinite term’.169
  5. 11.182 Victoria Legal Aid therefore recommended that Part 6 of the CMIA be amended to ‘better respond to the particular circumstances and needs of intellectually disabled and cognitively impaired persons’.170
  6. 11.183 The Office of the Public Advocate supported this position, stating that a gradual or staggered system of release ‘does not necessarily suit persons with an intellectual disability’ or the ‘best interests of people with cognitive impairment of a progressive nature (e.g. dementia)’ and that a system focussed on recovery may be inappropriate
    for these groups.171
  7. 11.184 People consulted also identified, and in some cases argued strongly for, the need to develop a clear treatment pathway for people with an intellectual disability under
    the CMIA.
  8. 11.185 The Senior Practitioner, Department of Human Services, commented that the treatment and service pathways are not clear under the CMIA for people with an intellectual disability and that this can result in the restrictions on the person and the level of supervision not being appropriately reduced over time.172

 

  1. 11.186 In a consultation meeting with staff from the Disability Forensic Assessment and Treatment Service and the Long Term Rehabilitation Program it was suggested that there is a lack of guidance in the Disability Act about treatment pathways for people with an intellectual disability under the CMIA.173 One Department of Human Services case worker suggested that the CMIA needs to ‘speak to’ other key pieces of legislation.174
  2. 11.187 In considering how to address the inconsistencies between the CMIA and the Disability Act, submissions argued that the framework and provisions outlined in the Disability Act regarding treatment should be applied to people with an intellectual disability who are subject to non-custodial supervision orders.175

The Commission’s conclusion

  1. 11.188 The Commission is of the view that people with an intellectual disability do not currently have a treatment pathway under the CMIA and are not subject to the same legislated protections in relation to clinical oversight and rights safeguards as people with a mental illness. While the Department of Human Services may provide treatment plans and other safeguards in some cases, people with an intellectual disability or other cognitive impairment under the CMIA are not equal under the law to people with a mental illness subject to orders under the CMIA or to people on other compulsory orders under the Disability Act, who have legislated safeguards and clinical oversight.
  2. 11.189 Providing a treatment pathway for people with an intellectual disability under the CMIA is consistent with the approach of Services Connect, a new integrated human services model of the Department of Human Services. Services Connect aims to ‘shift the focus of service delivery so that services are built around people and tailored to their unique needs, goals and aspirations, rather than around rigid program eligibility’.176
  3. 11.190 The Commission acknowledges that people with an intellectual disability who are subject to both custodial and non-custodial supervision orders may also be subject to detention and restrictions on their liberty. The Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) provides that a human right may only be limited where it is ‘reasonable, necessary, justified and proportionate’.177
  4. 11.191 People with an intellectual disability on a non-custodial supervision order often reside in accommodation that places significant limits on their liberty; for example, 24-hour-a-day supervision. This is not the case for people with a mental illness on a non-custodial supervision order who are living independently in the community.
  5. 11.192 The CMIA should make it clear which department is responsible for a person on a non-custodial supervision order. The Commission therefore supports an amendment to the CMIA to provide that a non-custodial supervision must specify the government department that is responsible for the supervision of a person.
  6. 11.193 Ensuring that a particular department is responsible for the supervision of a person on a non-custodial supervision order will provide accountability for supervision decisions for all people subject to the CMIA. This is of the utmost importance in circumstances where a person’s liberty is significantly restricted or the person is being provided with compulsory treatment or services.
  7. 11.194 Providing accountability for the supervision of all people subject to the CMIA will
    require supervisors to take an active role in the supervision of people to ensure that they are being provided with services or treatment to move through the CMIA system
    as appropriate.
  8. 11.195 The Commission also supports an amendment to the CMIA that requires that the department responsible prepare a treatment plan for every person who is subject to a supervision order under the CMIA, to ensure that this right is made clear under the
    CMIA provisions.178
  9. 11.196 While information obtained during submissions and consultations indicated that
    some people supervised by the Department of Human Services under the CMIA receive
    a treatment plan, this was not consistent across all cases. This requirement should
    be legislated.
  10. 11.197 In almost all cases, the Department of Health or the Department of Human Services will be designated as responsible for a person on a non-custodial supervision order under the CMIA. In very limited circumstances, a person under the CMIA may be detained in a prison and in these cases, the Department of Justice will be responsible for the person’s supervision. There will be difficulties in requiring that a treatment plan is provided for people who are supervised by the Department of Justice because compulsory treatment cannot be provided to people in a prison environment. This is a significant problem,
    which has also been recognised in other jurisdictions such as the Northern Territory and Western Australia.179
  11. 11.198 Reforms to the decision-making model under the CMIA will also assist people with an intellectual disability to move through the CMIA system when appropriate. Recommendation 85 outlined at [10.168]–[10.173] will create a presumption at a
    person’s second progress review that the court must vary the custodial supervision order to a non-custodial supervision order, unless satisfied on the evidence available that the person will pose an unacceptable risk of causing serious physical or psychological harm
    to members of the public.
  12. 11.199 Section 40(e) of the CMIA requires the court to consider whether there are adequate resources available for the ‘treatment and support’ of the person in the community when making decisions to make, vary or revoke a supervision order. This provision may make it difficult for a person with an intellectual disability or other cognitive impairment to demonstrate progress, given that they may not be receiving treatment or support in the community. The inclusion of ‘services’ in section 40(e) of the CMIA would provide greater scope for the disability forensic population to demonstrate progress under the CMIA.
    This amendment is consistent with Recommendation 28 which allows a magistrate to discharge an accused after determining that there is a real and substantial question of unfitness, if the magistrate considers that the accused is receiving treatment, support or services in the community and does not pose an unacceptable risk of harm.
  13. 11.200 The Victorian Parliament Law Reform Committee recommended in its report Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers that the Victorian Government consider amending the CMIA to clarify departmental responsibility for supervising and monitoring custodial supervision orders and non-custodial supervision orders.180

 

Recommendations

103 Section 26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require a court, when making a supervision order in respect of a person, to specify the department that is responsible for the person’s supervision (the supervisor).

104 A requirement should be added to section 26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) that the department that is specified as having responsibility for the person’s supervision must prepare a treatment plan for the person on the supervision order.

105 Section 40(e) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require that the court have regard to ‘whether there are adequate resources available for treatment, support or services in the community’.

 

Lack of clinical oversight

  1. 11.201 A person who is subject to a supervision order under the CMIA may have their rights limited in a number of ways. Restrictions on a person’s liberty can result from a
    custodial supervision order requiring a person to be detained in a specified place or
    their liberty may be restricted through the imposition of restrictive interventions or compulsory treatment.
  2. 11.202 A restrictive intervention is defined in the Disability Act as any intervention that is used to restrict the rights or freedom of movement of a person with a disability, including chemical restraint, mechanical restraint or seclusion.181 These terms are further defined
    in the Act as follows:
  • Chemical restraint—the use, for the primary purpose of behavioural control of a person with a disability, of a chemical substance to control or subdue the person but does not include the use of a drug prescribed for treatment or to enable treatment
    of a mental illness or a physical illness or the condition.182
  • Mechanical restraint—the use, for the primary purpose of behavioural control of a person with a disability, of devices to prevent, restrict or subdue a person’s movement but does not include the use of devices for therapeutic purposes or to enable the safe transportation on the person.183
  • Seclusion—the sole confinement of a person with a disability at any hour of the day or night in any room in the premises where disability services are being provided of which the doors and windows cannot be opened by the person from the inside, or of which the doors and windows are locked from the outside or to any part of the premises in which disability services are being provided.184

 

  1. 11.203 As noted at [11.32], the Senior Practitioner has a role under the Disability Act to protect the rights of people who are subject to restrictive interventions and to determine the appropriateness of treatment plans. The Chief Psychiatrist undertakes a similar role for people with a mental illness under the MHA 2014185 and exercises a range of powers which include, in specific circumstances, the review of treatment choices in light of a patient’s interests186 and the investigation of the provision of mental health services.187
  2. 11.204 People detained as forensic residents in a residential treatment facility or residential institution under the Disability Act are subject to the clinical oversight of the Senior Practitioner.188 People with an intellectual disability on non-custodial supervision orders may also be subject to restrictive interventions or other limitations on their liberty depending on the supervision requirements of the accommodation.
  3. 11.205 People with an intellectual disability on a non-custodial supervision order are not subject to the clinical oversight of the Senior Practitioner.

Views in submissions and consultations

  1. 11.206 The Office of the Public Advocate raised concerns about the lack of clinical oversight for people with an intellectual disability under the CMIA:

treatment of people under the CMIA should be subject to the same level of independent scrutiny that applies to people being treated involuntarily under the Mental Health Act 1986 and the Disability Act 2006. This raises questions about whether the Act is sufficiently focussed on treatment as there is a lack of specific provisions relating to treatment planning and review in the CMIA unlike the Mental Health Act and the Disability Act.189

  1. 11.207 Department of Human Services (DHS) case workers raised concerns that the requirement for the Senior Practitioner to approve restrictive practices did not apply to people on a non-custodial supervision order under the CMIA. One DHS case worker expressed the view that there is a lack of scrutiny of supervisors under the CMIA.190
  2. 11.208 Concerns were also raised about there being no requirement for a person on a
    non-custodial supervision order to have a treatment plan. One DHS case worker noted that while there is no compulsory treatment plan for people on supervision orders who are supervised by the department, a treatment plan is usually developed and either set out in the section 47 certificate191 or developed from the information in the section
    47 certificate.192
  3. 11.209 The Office of the Public Advocate proposed minimum considerations that should be taken into account prior to treatment of people with an intellectual disability, including:
  • the nature of the treatment that is to be used
  • the circumstances in which the proposed form of treatment is to be used
  • how the treatment will be of benefit to the person, and
  • the expected duration of the treatment.

 

  1. 11.210 The Office of the Public Advocate also considered that the treatment should be:
  • the least restrictive of the person as is possible in the circumstances
  • subject to external monitoring and scrutiny
  • carried out in consultation with the person with the disability and, where appropriate, their guardian, representatives of disability service providers, and any other person considered to be integral to the treatment.
  1. 11.211 One DHS case worker compared a supervised treatment order under the Disability
    Act to a non-custodial supervision order. The case worker raised concerns that
    non-custodial supervision orders do not have the same ‘checks and balances’ and by contrast, supervised treatment orders under the Disability Act are much more rights-based, have the oversight of the Senior Practitioner and can be revoked more quickly.193
  2. 11.212 Concern about the implications of the lack of clinical oversight for people with an intellectual disability subject to a non-custodial supervision order was shared by Victoria Legal Aid. Victoria Legal Aid explained that because of this ‘disconnect’, people with an intellectual disability under the CMIA experience ‘less robust oversight’ of their treatment than people under Disability Act orders, whose treatment is monitored by the Office of the Public Advocate or VCAT, and people with a mental illness on non-custodial supervision orders.194
  3. 11.213 Victoria Legal Aid suggested that Forensicare’s role in monitoring and supervising people with a mental illness on a non-custodial supervision order, and their expert guidance and clinical oversight role in supporting area mental health services ‘provides a solid framework for the continued supervision and treatment of people with a mental illness and promotes clear accountability’.195
  4. 11.214 Victoria Legal Aid therefore recommended that people with a disability on a non-custodial supervision order be made subject to the clinical oversight and responsibility of the
    Senior Practitioner within the current monitoring framework outlined in the Disability Act, stating that:

Through the contribution of the clinical expertise of the Office of the Senior Practitioner, the interventions are more likely to achieve therapeutic objectives and people are more
likely to access effective treatments and interventions and reduce the duration of restrictions under a NCSO [non-custodial supervision order]. Consideration should be given as to how this aim could be achieved within the current monitoring framework outlined in the Disability Act.196

  1. 11.215 In a consultation with staff from DHS, it was suggested that the most appropriate way
    of ensuring people subject to supervision orders under the CMIA receive clinical oversight is through strengthening DHS policy in this area. It was noted that ‘[u]tilising policy ensures that any arrangements can be better adapted to reflect current disability practice developments and to support an individual approach’.197

The Commission’s conclusion

  1. 11.216 The Commission supports legislative amendment to ensure that people who are supervised by DHS are subject to the same protections and rights as those people who are supervised by Forensicare through the Department of Health.
  2. 11.217 As discussed at [11.44], people with an intellectual disability on a non-custodial supervision order are often subject to ‘detention’ due to the supervision requirements
    of the accommodation in which they reside. There is no clinical oversight on the
    restrictions that may be imposed on the person. The Commission is of the view that
    this is inconsistent with the Charter.198
  3. 11.218 The Commission acknowledges that it is the preference of DHS that clinical oversight be provided to people subject to the CMIA through policy and procedure. However, given the current inequalities between people with an intellectual disability under the CMIA and people both with a mental illness under the CMIA and people subject to a supervised treatment order under the Disability Act, the Commission is of the view that clinical oversight should be a legislative requirement.
  4. 11.219 The Commission therefore supports making an amendment to the Disability Act to include people on a supervision order under the CMIA in the definition of compulsory treatment. This amendment will ensure that people on a supervision order under the CMIA will be subject to the clinical oversight of the Senior Practitioner.

Recommendation

106 The definition of ‘compulsory treatment’ in the Disability Act 2006 (Vic) should be amended to include people subject to a supervision order that designates the Secretary to the Department of Human Services as responsible for the person’s supervision.

 

Interstate transfer orders

Current law

  1. 11.220 There are two main requirements for a person subject to a supervision order to transfer from Victoria to another state. These are:
  • the laws of the state the person would like to transfer to must allow the transfer
  • the Minister administering the transfer must allow the transfer by making an order.199
  1. 11.221 The Minister may only allow a person to transfer to another state if they are satisfied that:
  • the Chief Psychiatrist has provided a written statement that the transfer is of benefit to the person subject to a supervision order, and
  • the Minister is satisfied that the transfer is allowed by laws of the state the person would like to transfer to, and the person subject to the supervision order has given informed consent to the transfer or, if unable to give informed consent, their guardian has given informed consent to the transfer.200

 

  1. 11.222 Many of these cases attract quite a lot of negative media attention and so decisions to allow a person to transfer from another state to Victoria have the potential to be quite political in nature.201 There has only been one transfer to the Victoria under the CMIA which was reported to have occurred as a result of the National Mental Health Plan, which recommended that mental health and related legislation be reviewed and where necessary, amended, to ‘support cross-border agreements and transfers of people under civil and forensic orders, and scope requirements for the development of nationally consistent mental health legislation’.202
  2. 11.223 In order to transfer to Victoria, a person subject to a supervision order in another
    state must meet the requirements outlined and must also satisfy the following
    additional requirements:
  • The Minister must be satisfied that ‘the transfer is necessary for the maintenance
    or re-establishment of family relationships or relationships with people who can assist in supporting the person’.203
  • The Chief Psychiatrist must provide a written statement that there are facilities or services available for the custody, care and treatment of the person.204
  1. 11.224 The provisions governing transfer to Victoria and transfer to another state require a certification from the Chief Psychiatrist that the transfer is of benefit to the person and
    in the case of a person transferring to Victoria, that there are services and facilities available for the custody, care and treatment of the person. These provisions do not seem to contemplate the transfer of a person with an intellectual disability or other cognitive impairment, given the Chief Psychiatrist would not be in a position to determine these matters for the forensic disability population. The Secretary of the Department of Human Services would be the appropriate person to advise on matters relevant to the transfer
    of a person with an intellectual disability or other cognitive impairment.
  2. 11.225 Upon arrival in Victoria, the person is placed on an ‘interim order’ and within six months, an application must be made to the Supreme Court for a review.205 At the review, the court may place the person on a supervision order or order the person’s unconditional release.206 If the person is placed on a supervision order, the court must set a nominal term.207 The Supreme Court cannot make an order that is ‘more restrictive on the person’s freedom and personal autonomy’ than the order the person was on interstate, unless the safety of the person or members of the public would be seriously endangered if a more restrictive order is not made.208
  3. 11.226 The consultation paper asked whether there are any barriers to effecting interstate transfer orders under the CMIA and if so, what changes could be made to make the interstate transfer process more effective.

Views in submissions and consultations

  1. 11.227 A number of issues were raised in submissions and consultations in relation to interstate transfer orders. The main concern was about the political nature of the decision to transfer a patient interstate.
  2. 11.228 Forensicare argued in its submission that the current system for interstate transfers is not working well and that it ‘does not appear that these provisions have been used effectively or frequently to effect interstate transfers’.209
  3. 11.229 Victoria Legal Aid, while acknowledging that interstate transfer orders depend on reciprocal legislation in other states, was of the view that interstate agreements should be reviewed to facilitate interstate transfer orders because they are ‘crucial to the successful treatment and support of people subject to supervision orders’.210
  4. 11.230 Associate Professor Andrew Carroll raised the political aspect of decision making in relation to interstate transfer orders and highlighted that the need to involve politicians ‘means that these are inevitably subject to long drawn out procedures’ and that ‘current arrangements often compromise patients’ access to family support’.211
  5. 11.231 Forensicare supported this view, describing the process of interstate transfer as
    ‘lengthy, bureaucratic, and likely to take several years’.
    212 Forensicare argued that the problem with the current process for interstate transfers is that there has been ‘limited political will’ to resolve the issue and that it is ‘particularly unfortunate’ that there are not clearer arrangements in place between neighbouring states, given people may be required to remain indefinitely in another state ‘by accident of geography’ to which
    they have ‘no practical connection, such as family and social supports, accommodation and employment’.
    213

The Commission’s conclusion

  1. 11.232 The Commission is of the view that the decision to transfer a patient interstate should
    not be a political one. Consistent with the national mental health plan, decisions
    should be made in the best interests of the patients, while also considering the safety
    of the community.
  2. 11.233 The Commission notes that there is currently no reference in the interstate transfer provisions for people with an intellectual disability who are supervised by the Department of Human Services.
  3. 11.234 The Secretary of the Department of Health or the Secretary of the Department of Human Services would be in the best position to make decisions about the need for an interstate transfer of a person under the CMIA.
  4. 11.235 The Commission acknowledges that decisions about interstate transfers are limited by the laws in operation in other states, but is of the view that it is important to ensure that the laws in Victoria facilitate interstate transfers and where possible, limit delays and lengthy administrative processes.

 

Recommendation

107 Sections 73D and 73E of the Crimes (Mental Impairment and Unfitness to
be Tried) Act 1997
(Vic) should be amended to provide that:

(a) the relevant Secretary has the power to make an order authorising
the interstate transfer of a person, and

(b) sections 73D(2)(a) and 73E(2)(a) allow either the Chief Psychiatrist or
the Secretary of the Department of Human Services to certify that
the transfer is of benefit to the person and that facilities and services
are available.

 

Operational issues related to the management of people
subject to supervision orders

  1. 11.236 Throughout submissions and consultations, a range of operational issues were raised about the CMIA. While these issues were not appropriate to be dealt with through legislative amendment, the Commission is of the view that it is important to include them in this report to bring them to the attention of those involved in implementing the CMIA in their work so that they may be addressed in modifications to policy and procedures.

Transportation of people in custody

  1. 11.237 A person on a supervision order raised the issue of the inappropriateness of the process for transporting people with a mental condition to court:

Transport to court can be overwhelming—the mode of transportation does not factor
in the different needs of people with a mental condition. Up until the time of sentencing no distinction is made between patients and prisoners and patients are treated as prisoners. There is very little space in the vehicle and the journey is quite long (it goes around to all the different prisons) … It is also stressful and mentally draining.214

Taking leave under supervision orders

  1. 11.238 A number of people on supervision orders also raised operational issues in relation to taking leave. One person on a supervision order raised the issue of leave sometimes not being able to be taken when staff are unavailable to escort a patient on leave.215
    To address this issue, participants at a meeting of the Consumer Advisory Group in Thomas Embling Hospital suggested that peer support workers should be able to accompany patients on leave or that ‘there should be staff employed, dedicated and trained for accompanying people on leave.’ It was suggested that this would free up nursing staff.216

Information sharing

  1. 11.239 A number of issues were raised in submissions and consultations in relation to information sharing for people involved in supervising people subject to orders under the CMIA.
  2. 11.240 One participant in consultations with area mental health services raised concerns about the limited amount of information that is provided to a service when a person is transitioning from a custodial supervision order to a non-custodial supervision order.217 The participant commented that it is difficult to obtain information on the person about to be supervised and the information that is provided often includes only information about the person’s mental health and treatment or medication.
  3. 11.241 A participant in a meeting with another area mental health service agreed with this view, stating that information sharing is most limited during the transition from the forensic system to the mental health service, but that once a person is on a non-custodial supervision order, information sharing works ‘really well’.218
  4. 11.242 The relationship with the police was considered an important part of obtaining information to effectively manage a person on a supervision order in the community,
    as the area mental health service will only be advised about prior contact with the justice system if this information is volunteered by the person on the supervision order.219
    One participant in a consultation with an area mental health service commented that this means that the ‘potential [is] always there that things could go really pear shaped
    because of our lack of knowledge’.220
  5. 11.243 It was noted by the Chief Psychiatrist in a consultation with the Commission that the MHA 1986 authorised information sharing to facilitate future treatment of people
    subject to non-custodial supervision orders under the CMIA.221 This continues under
    the MHA 2014.222

Footnotes

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