2. The CMIA: background and principles

Introduction

  1. 2.1 In Victoria, when a person is charged with an offence a particular process, governed by legislation and case law, usually follows under the criminal law. The purpose of the process is two-fold: to determine whether or not the person is guilty of the offence charged (or some other alternative offence) and, if the person is guilty, to determine what consequences should follow by way of a sentence.
  2. 2.2 The first stage of this process—the guilt or otherwise of a person—is focused on whether the person should be held criminally responsible for an offence. This requires proof to a particular standard that the person did certain acts (the physical elements of an offence) and that they did those acts with a particular mental state, knowledge or intention (the mental elements of an offence).
  3. 2.3 For example, for a person to be found guilty of the offence of murder, it must be proved beyond reasonable doubt that the person did an act that caused the death of the victim, and that the person did that act with the intention of killing the victim or intending to cause serious bodily harm, or while knowing that it was probable that death or serious bodily harm would result, and without lawful justification (self-defence).
  4. 2.4 If a person pleads not guilty to an offence, a jury in a criminal trial (in the Supreme Court or County Court) or a magistrate (in the Magistrates’ Court) must decide the question of whether or not a person committed it. Alternatively, the person may choose to plead guilty to the offence, which negates the need for a trial. In order for a person to plead not guilty and stand trial for an offence or to plead guilty to an offence, they must be fit to stand trial, that is they must be mentally capable of entering a plea and understanding the trial process.
  5. 2.5 Under the usual criminal process, particular consequences flow from a finding of guilt. These primarily include a conviction and/or a sentence imposed by judges (in the Supreme Court and County Court) and magistrates (in the Magistrates’ Court). Sentencing is governed by a statutory and common law framework which requires a court to have regard to a broad range of factors. A number of other consequences flow from a finding of guilt for an offence, such as orders for compensation of any victims of the offence, orders to confiscate certain property or licence suspension, disqualification or cancellation.
  6. 2.6 For the vast majority of people who come before the courts in Victoria charged with criminal offences, this general process is followed. However, where a person has been charged with an offence and they have a mental condition that affects their capacity to a particular degree, there can be a legitimate basis for exempting them from the usual criminal process and diverting them to a specialised process.
  7. 2.7 The bases for these exemptions are founded on long established principles in the criminal justice system. A person should not be tried for an offence if at the time of trial they are mentally unfit to stand trial. A person should not be held criminally responsible and punished for an offence if at the time the offence occurred they did not have the capacity to commit the offence because of a mental impairment.
  8. 2.8 These principles form the basis of different laws and procedures that apply to a person who falls into one or both of these categories. In Victoria, these laws and procedures were formerly contained in a system known as the Governor’s pleasure regime. Since 1997, the system has been governed by the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA). The CMIA governs the law and procedure in relation to people charged with criminal offences (‘accused people’) who are found to be mentally unfit to stand trial for those offences and/or who are found not guilty of those offences because of mental impairment.
  9. 2.9 The Commission’s review of the CMIA will necessarily take into account the history of the law and procedure in Victoria in this area.
  10. 2.10 This chapter of the consultation paper provides background and context to the Commission’s reference to review the CMIA. This chapter:
  • describes the Governor’s pleasure regime that existed prior to the introduction of the CMIA
  • outlines the issues identified with the Governor’s pleasure regime that led to the introduction of the CMIA and how the CMIA attempted to address those issues
  • summarises the relevant recommendations for change that have been made in reviews that have been conducted since the CMIA was introduced
  • sets out the principles underlying the CMIA that form the principal frame of reference for the Commission’s review of the operation of the CMIA.

The Governor’s pleasure regime

Background to the regime

  1. 2.11 Prior to the introduction of the CMIA, accused people who were found either ‘unfit to plead’1 to criminal charges or not guilty of criminal charges on the ground of ‘insanity’2 were ordered to be kept in strict custody until the Governor’s pleasure was known. This system was referred to as the Governor’s pleasure regime.
  2. 2.12 The Governor’s pleasure regime was enacted in England in 1800 by the Criminal Lunatics Act 1800. Its enactment followed the trial of James Hadfield, where Hadfield, suffering from a delusion, attempted to kill King George III.3 Hadfield was acquitted of treason on the ground of insanity and detained in custody as a dangerous person until his death.
  3. 2.13 The Governor’s pleasure regime was developed to deal with two categories of accused people: those who were unfit to plead and those who, like Hadfield, were found not guilty on the ground of insanity. The regime recognised that an accused person could not be subject to an ordinary trial if they could not understand the charge (or were found ‘unfit to plead’). It also recognised that an accused person could not be held criminally responsible for their crime if they did not understand what they were doing or did not understand that what they were doing was wrong (or were found ‘not guilty on the ground of insanity’).4 An accused person could fall into one of these categories for various reasons, including mental illness, intellectual disability or cognitive impairment.
  4. 2.14 In Victoria, the Governor’s pleasure regime was introduced through sections 393 and 420 of the Crimes Act 1958 (Vic). These sections provided for the ‘strict custody until the Governor’s pleasure shall be known’ of accused people tried for indictable offences in the Supreme Court or County Court and who were found unfit to plead or not guilty on the ground of insanity. The Corrections Act 1986 (Vic), the Mental Health Act 1986 (Vic) and the Intellectually Disabled Persons’ Services Act 1986 (Vic), provided for the management of these people during detention, including their leave arrangements. However, convention governed much of the procedure.5

Problems identified in reviews of the regime

  1. 2.15 The development of the CMIA was influenced by a number of reviews:
  • the Model Criminal Code Officers’ Committee’s model legislation, the Model Mental Impairment and Unfitness to be Tried (Criminal Proceedings) Bill 1995 for jurisdictions in Australia, and
  • the Victorian Parliamentary Community Development Committee’s Inquiry into Persons Detained at the Governor’s Pleasure tabled in 1995.6
  1. 2.16 Prior to these reviews, the Law Reform Commission of Victoria also conducted work in this area and made a number of recommendations regarding the insanity defence in its report on Mental Malfunction and Criminal Responsibility.7 An extensive review of sentencing in Victoria undertaken by the Victorian Sentencing Committee in 1998 also examined and made recommendations on the Governor’s pleasure regime.8
  2. 2.17 These reviews, along with much academic commentary, highlighted a number of problems with the Governor’s pleasure regime:
  • Lack of coherent framework—the detention, management and release of people found to be either unfit to plead or not guilty on the ground of insanity under the Governor’s pleasure regime was regulated by various pieces of legislation and convention. There was no single piece of legislation that set out the process that applied to people under Governor’s pleasure orders.9
  • Overlap with the criminal justice system of detention, supervision and review—there was the possibility of people being detained in the prison system even though they were not criminally responsible for their crime.10 The involvement of the Adult Parole Board, that generally makes decisions in relation to people found guilty of an offence, in making recommendations for the release of people under Governor’s pleasure orders, also brought these people under the criminal justice system.11
  • No testing of evidence—people found unfit to plead to criminal offences would be detained at the Governor’s pleasure without a further hearing to test the prosecution evidence against them and to determine whether or not they committed the criminal offences charged.12
  • Involvement of the executive—the executive13 made decisions on the release of people under Governor’s pleasure orders. A decision to release a person under a Governor’s pleasure order could be influenced by political considerations that could favour community safety over the rights of the person subject to the order.14
  • Duration of detention—the process that was in place, particularly the involvement of the executive in decisions to revoke Governor’s pleasure orders, resulted in periods of detention that were ‘far in excess of the time required for effective treatment’.15 A study by the Commission of all people subject to Governor’s pleasure orders between 1959 and 1988 provided some indication that orders were based on a tariff system rather than a genuine assessment of dangerousness.16
  • Lack of transparency and procedural fairness—the Governor’s pleasure regime lacked transparency, particularly in relation to the process behind the executive’s decision to release a person subject to a Governor’s pleasure order. Leave decisions were also not transparent, for example, the criteria for granting leave were not clear and had no legislative basis. The right to appear and to appeal leave decisions was limited.

The introduction of the CMIA

  1. 2.18 The Crimes (Mental Impairment and Fitness to Stand Trial) Bill 1997 sought to abolish the Governor’s pleasure regime and establish new procedures for determining unfitness to stand trial, establishing the defence of mental impairment and a process dealing with accused people found unfit to be tried or not guilty because of mental impairment.
  2. 2.19 The Bill received bipartisan support and was heralded in parliamentary debates as progressive and groundbreaking. The then Attorney-General, the Honourable Jan Wade, MP, in outlining the reforms during the second reading speech, noted that the Bill:
  • provided a new procedure to deal with accused people who may be unfit to stand trial by giving them the opportunity to become fit (during a 12-month adjournment) and to have the evidence against them tested (with a special hearing process)
  • gave trial judges the power and flexibility to make the most appropriate order in terms of treatment, the provision of services and the degree of supervision to which a person would be subject
  • provided for a new supervision regime that transferred responsibility for the release of people subject to supervision orders from the executive to the judiciary and that recognised that the treatment or reintegration of these people is most appropriately managed on a gradual basis
  • set a nominal term requiring the court to conduct a major review of a supervision order to determine whether the person should be released or have the conditions of their supervision changed
  • required the provision of regular expert reports to the trial court where the court had ordered that a person be subject to a supervision order to assist the court in determining whether to release a person and to ensure these people were not ‘lost in the system’
  • provided for notice to, and consultation with, the next of kin of the person subject to a supervision order and the victim where the court was considering releasing the person or granting extended leave
  • required leave decisions to be made by a Forensic Leave Panel, chaired by a judicial member, to ensure the leave process was transparent and accessible
  • set out the matters to which a court should have regard in imposing and reviewing supervision orders to strike the appropriate balance between the protection of the community and the rights and clinical or therapeutic needs of the person subject to a supervision order.17
  1. 2.20 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA) was assented to on 18 November 1997. On 18 April 1998, the CMIA commenced full operation.
  2. 2.21 The CMIA uses the term ‘mental impairment’ in place of the outdated term ‘insanity’ and the expression ‘unfit to stand trial’ in place of ‘unfit to plead’ to reflect that an accused person must be fit at all stages of the proceedings.
  3. 2.22 The CMIA, however, does not alter the existing common law in relation to the test for determining unfitness to stand trial or the test for establishing the defence of mental impairment. The CMIA incorporated the common law test for fitness to plead, that derived from the Supreme Court of Victoria’s decision in R v Presser,18 and the test for the defence of insanity from Daniel M’Naghten’s case.19
  4. 2.23 The procedures in the CMIA for investigating unfitness to stand trial, special hearings and the power to impose a supervision order were not made available to the Magistrates’ Court.20

Previous reviews of provisions in the CMIA

  1. 2.24 A number of specific aspects of the CMIA have been reviewed since it commenced operation. The current reference by the Commission is the first comprehensive review of the operation of the CMIA as a whole. This section will outline the findings of these previous reviews that will be considered as part of this reference.

Review of leave arrangements for patients at Forensicare

  1. 2.25 In March 2001, a review panel (the Vincent Review) was formed to consider leave arrangements for patients at the Victorian Institute of Forensic Mental Health (Forensicare) who are held at the Thomas Embling Hospital.21 The Hon. Justice Frank Vincent AO QC chaired the panel.
  2. 2.26 The Vincent Review recommended that:
  • Forensicare develop detailed leave plans that provide a comprehensive rehabilitation program for each forensic patient including proposed leave arrangements22
  • Forensicare establish an internal body to provide a quality check and endorse all leave requests to the Forensic Leave Panel or court23
  • the Forensic Leave Panel clearly set out in its orders all leave arrangements available to the forensic patient24
  • consideration be given to amending the CMIA to ensure that the Forensic Leave Panel considers specific criteria before granting leave and to strengthen the standard required for granting leave to forensic patients,25 and
  • arrangements or mechanisms be put in place so patients absconding interstate could be apprehended and returned to Victoria as a matter of priority.26
  1. 2.27 The recommendations of the Vincent Review requiring legislative amendment were implemented by the Forensic Health Legislation (Amendment) Act 2002 (Vic) and the Sentencing and Mental Health Acts (Amendment) Act 2005 (Vic).

People with intellectual disabilities at risk

  1. 2.28 In November 2003, the Commission published its report People with Intellectual Disabilities at Risk: A Legal Framework for Compulsory Care. The Commission reviewed the provisions for the ‘compulsory treatment and care’ of people with an intellectual disability who are a risk to themselves and the community.
  2. 2.29 The Commission proposed amendments to the legislative framework for compulsory care. In doing so, the Commission examined some parts of the CMIA. The Commission recommended that where a magistrate finds a person with an intellectual disability or cognitive impairment not guilty because of mental impairment, the magistrate should be able to refer the person to the Office of the Senior Clinician.27 At the time of writing this paper, this recommendation has not been adopted.

Defences to homicide

  1. 2.30 In 2001, the Commission commenced a review of the law on defences and partial excuses to homicide, including the defence of mental impairment under the CMIA. The Commission reported in November 2004 and recommended that:
  • a new provision be inserted into the CMIA to make it clear that ‘mental impairment’ includes, but is not limited to, a disease of the mind, which is the common law basis for the defence of mental impairment28
  • the Department of Human Services, in conjunction with the Department of Justice, conduct an ongoing evaluation of the effectiveness of the CMIA,29 and
  • agencies offering seminars and lectures for continuing professional development purposes should provide information on the operation of the CMIA, including the nominal term, to improve understanding within the legal community.30
  1. 2.31 The Commission also recommended a ‘consent mental impairment’ procedure for accused people who plead not guilty because of mental impairment. Under the procedure, if:
  • a judge, having heard expert evidence, is satisfied that no jury properly instructed could find the accused person guilty of the offence due to the accused person’s mental impairment, and
  • the prosecution and the defence agree that the accused person was mentally impaired at the time of the crime,

then the judge should be able to make a finding that the accused person is not guilty of the offence because of mental impairment.31

  1. 2.32 The Commission recommended that this evidence should be heard before a judge alone, but the judge should have the discretion to direct that a jury deal with the matter.32 This recommendation was adopted in the Crimes (Homicide) Act 2005 (Vic).

Guardianship

  1. 2.33 In 2010–11, the Commission reviewed the Guardianship and Administration Act 1986 (Vic) and a range of other laws that deal with substitute decision making for people with impaired decision-making ability. The purpose of the review was to report on any changes that were needed to the law to ensure that it responds to the current and future needs of people with impaired decision-making ability, and promotes their rights.
  2. 2.34 The Commission considered the relationship between the Guardianship and Administration Act and the CMIA. In 2012, the Commission recommended that:
  • the role of guardians should not extend to substitute decision making about legal proceedings under the CMIA
  • people detained under the CMIA be provided with an advocate at particular times including during major reviews of a supervision order and when leave decisions are being made by the Forensic Leave Panel
  • there should be a legislative requirement for the automatic review of each custodial supervision order (CSO) under the CMIA at least every two years.
  1. 2.35 At the time of writing this paper, these recommendations have not been implemented.

Victorian Parliament Law Reform Committee report

  1. 2.36 Most recently, the Victorian Parliament Law Reform Committee (Law Reform Committee) published a report resulting from its Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers. The terms of reference for the current CMIA review request that the Commission have regard to the Law Reform Committee’s recommendations.
  2. 2.37 The Law Reform Committee’s report, released in March 2013, contained a range of recommendations. The following recommendations are directly relevant to this review:
  • the Victorian Government consider allowing the trial judge to investigate an accused person’s fitness to stand trial, which currently must be determined by a jury33
  • the Victorian Government investigate procedures adopted in the United Kingdom that may expedite the process for determining fitness to stand trial34
  • the Victorian Government consider whether the ability of the accused person to understand or respond rationally to the charge or the ability of the accused person to exercise or to give rational instructions about the exercise of procedural rights, should be taken into account in determining fitness to stand trial35
  • the CMIA define ‘mental impairment’ to encompass mental illness, intellectual disability, acquired brain injuries and severe personality disorders36
  • the Victorian Government consider amending the CMIA to allow investigations into an accused person’s fitness to stand trial in the Magistrates’ Court and that uniform procedures be adopted in committal proceedings in the Magistrates’ Court when fitness to stand trial is in issue37
  • the CMIA clarify departmental responsibility for supervision and monitoring custodial supervision orders and non-custodial supervision orders.38
  1. 2.38 At the time of writing this paper, these recommendations have not been implemented.
  2. 2.39 The Law Reform Committee also made a number of findings relevant to the Commission’s review of the CMIA. In particular, the Law Reform Committee found that lawyers can enhance their client’s ability to understand and participate in the legal process by modifying their approaches to communication.39 The Law Reform Committee also recognised the important role judicial officers play in ensuring that people with an intellectual disability or cognitive impairment receive fair and equal treatment when they come before the courts.40
  3. 2.40 The Commission discusses these recommendations and findings in detail in subsequent chapters of this paper.

Principles of the CMIA

  1. 2.41 The Commission has been asked to examine whether the CMIA is operating justly, effectively and consistently with a number of principles that underlie it.
  2. 2.42 The CMIA governs an area of the law that requires an understanding from both a criminal and health perspective and raises both legal and treatment issues. A number of specific criminal law and human rights principles underpin the CMIA, as well as principles derived from forensic mental health and disability.41
  3. 2.43 Some of these principles are outlined specifically in the legislation. Other principles, while not referred to explicitly in the legislation, are implied through the aims and objectives of the CMIA, its processes and relevant case law on the interpretation of its provisions.

Overarching aims and objectives of the CMIA

  1. 2.44 The CMIA was introduced in response to the various problems that had been identified by a number of reviews of the Governor’s pleasure regime (discussed above at [2.17]). It sought to address these problems by:
  • providing a coherent framework for people found unfit to stand trial or not guilty because of mental impairment
  • creating a specialised pathway that did not overlap with the normal criminal justice system
  • providing a fair hearing process for testing the evidence against an accused person who is found unfit to stand trial
  • removing the involvement of the executive in decisions regarding release and vesting it in an independent judiciary
  • establishing a system of review and gradual reintegration to prevent inappropriate or indefinite detention
  • ensuring transparency and procedural fairness in decision making regarding release and leave.
  1. 2.45 The Governor’s pleasure regime was also criticised by the Victorian Parliamentary Community Development Committee. It was concerned that the regime unduly favoured the community’s expectations of safety over the rights of people found unfit to stand trial or not guilty because of mental impairment.42 The CMIA seeks to strike an appropriate balance between protection of the community and the rights and clinical needs of people found unfit to stand trial or not guilty because of mental impairment.

Fairness to an accused person and the right to a fair trial

  1. 2.46 A key principle underpinning the CMIA founded in the historical origins of the law on unfitness to stand trial, is that the court should not require a person to enter a plea to a charge or be tried on a charge unless they are mentally competent, or ‘fit’, to do so.
  2. 2.47 This principle is based on the ‘central precept of our criminal law … that no person shall be convicted of a crime otherwise than after a fair trial according to law.’43
  3. 2.48 An accused person has a fundamental right to a fair trial. This accompanies various other rights relating to fairness in criminal proceedings. For example, accused people in criminal proceedings have the right to be given reasons for decisions made by a court and the right to appeal a decision made by a court to a higher court. The right to a fair trial is founded in criminal law,44 and is also recognised as a human right in Victorian45 and international law.46 Some of the key features of the right to a fair trial include the right to be given details of the allegations in a charge, the right to legal representation and the right to silence.
  4. 2.49 Implicit in the right to a fair criminal trial is the assumption that an accused person is mentally competent to exercise this right. For example, the person must be able to understand the allegations made against them, to instruct a lawyer and to enter a plea to the charge. If a person is not mentally competent to do this, then any trial of that person or hearing of a charge may not be fair. Also relevant is the right to recognition and equality before the law. A person with a mental condition is equally entitled to a fair hearing in criminal matters as a person without a mental condition.47
  5. 2.50 The requirement that a person be mentally fit to stand trial is justified on the need to avoid inaccurate verdicts, to maintain the integrity of the trial process and to avoid unfairness to the accused person.
  6. 2.51 The right to a fair trial is expressed in various aspects of the CMIA. For example, Part 3 of the CMIA provides for a special hearing of the evidence where the accused person is found unfit to stand trial. In a special hearing the accused person is entitled to legal representation, entitled to challenge jurors (through their legal representative) and raise any defence available at a usual criminal trial, for example the defence of mental impairment.48

Legitimate punishment

  1. 2.52 Another key principle underlying the CMIA is that a person should not be held criminally responsible and punished for an offence if they are not morally blameworthy for the behaviour.
  2. 2.53 This legal principle is based on the notion, recognised in law for almost two thousand years,49 that a person who is mentally ill should not be held criminally responsible due to the effect of their condition on their mental state.
  3. 2.54 Before it became part of the criminal law, the idea was based in philosophy that human beings exercised free will in their actions. Therefore, they should only be punished for wrongful acts that they ‘willed’ or intended to happen.50 As articulated by Ruffles,

[h]erein lies the justification for the mental illness defence – while a mentally ill person may commit a physical act that constitutes a crime – the actus reus – the “misfortune of their condition” may deprive that person of the free will to form the requisite mens rea or ‘guilty mind’. If there is no “guilty mind”, moral blame cannot attach to the act and the person cannot, therefore, be held criminally responsible. In turn, to be eligible for punishment, a person must not only have intentionally committed a criminal act, but must be considered responsible for having chosen to do so.51

  1. 2.55 The principle states that if a person, who commits the physical acts of an offence, does not possess the mental capacity required to form a guilty mind in committing the offence, then it is not logical or just to punish the person for what they have done. This has been described as the ‘fairness policy’.52
  2. 2.56 The principle is also linked to the broad notion of proportionate punishment, which underpins fundamental common law sentencing principles in Victoria, such as proportionality and totality.53 The primary purpose of proportionality is that ‘the punishment imposed on offenders by way of sentence is just and fair, is not arbitrary in its application and respects the basic human rights of those who are sentenced’.54 By extension, it would not be fair to punish a person who is not criminally responsible for an offence because of a mental impairment.

Least restrictive alternative

  1. 2.57 The CMIA explicitly states that the general principle to be applied by the court is that ‘restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community’.55 This principle applies to decisions by the court to make, vary or revoke a supervision order, to remand a person in custody and to grant a person extended leave.
  2. 2.58 The Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) provides that a human right may only be limited where it is ‘reasonable, necessary, justified and proportionate’.56 This means any decision to limit human rights must take into account all relevant factors including any less restrictive means reasonably available to achieve the overall purpose of the limitation.57 This principle is also underpinned by internationally recognised human rights to liberty and security of the person,58 and the right to humane treatment when deprived of liberty.59
  3. 2.59 When a court makes a supervision order with respect to a person under the CMIA, the principle of least restriction aims to ensure ‘the interests of the safety of the community with the appropriate minimum restriction upon the freedom and autonomy of the reviewee’.60 An example of this is the requirement under the CMIA that a person is not to be detained in prison unless there is no practicable alternative.61
  4. 2.60 The CMIA also allows the court to intervene in situations where a person subject to the CMIA is likely to cause harm to themselves. Section 40(1) of the CMIA requires the court to have regard to ‘the nature of the person’s mental impairment or other condition or disability’ and whether, ‘the person is, or would if released be, likely to endanger themselves, another person, or other people generally’ and ‘the need to protect people from such danger’.62 In these cases, the decision to limit a person’s freedom and autonomy by placing them on a supervision order is consistent with the Charter requirement that it be ‘reasonable, necessary, justified and proportionate’ to prevent serious harm or death.
  5. 2.61 The principle of least restriction is also reflected in the CMIA in a number of safeguards against arbitrary detention. For example, the court must set a ‘nominal term’ when imposing a supervision order. A nominal term specifies the period of time that can elapse before a court must conduct a major review of the order.63

Protection of the community

  1. 2.62 Connected to the principle of least restriction, but also a principle in its own right, is the principle of protecting the community from the danger that will be posed or may be likely due to a person’s mental condition. This has been described as the ‘social control’ policy.64
  2. 2.63 This principle is reflected throughout the CMIA by the notion of endangerment. Endangerment in this context is

about the risk of harm. The gravity of the harm may be relevant to assessing the nature of the risk, but the probability of any risk, be it high or low, is the critical concept of endangerment … The ordinary meaning of endangerment entails the concept of chance or risk.65

  1. 2.64 The concept underpins the CMIA in two different ways:
  • Likely endangerment—the need to protect the community from the ‘likely danger’ posed by a person.
  • Serious endangerment—the need to protect the community from their safety being ‘seriously endangered’ by the person.
  1. 2.65 The terms ‘likely endangerment’ and ‘serious endangerment’ have different meanings under the CMIA but there is some overlap in application. Assessing the risk of serious endangerment encompasses both the likelihood of the danger and the gravity of the possible harm if the danger eventuates. This can be contrasted with assessing the risk of likelihood of endangerment, which only encompasses how likely it is that any danger may eventuate, irrespective of the gravity of the possible harm.66
  2. 2.66 A person subject to a supervision order under the CMIA is included in the term ‘community’ in terms of protection from danger, as well as any other specific people or members of the general community.
  3. 2.67 Implicit in the balancing of the competing interests is the requirement that the court engage in future assessment.67 The court must try to make an assessment of the current or future risk of dangerousness posed by a person who is unfit to stand trial or not guilty because of mental impairment. This task requires the court to embrace notions of uncertainty and to consider the ‘likelihood of such [future] risk becoming a reality’.68 The Commission considers some of the potential issues regarding the approach taken to this difficult task in Chapter 9.

Rights of victims and family members

  1. 2.68 The impact of decisions on victims and the family and carers of the person with a mental condition is also a significant consideration in the CMIA. This is relevant to the court’s task of balancing the rights of the accused person with the protection and interests of the community and ensuring that the victims have an opportunity to exercise their rights to be heard and be informed in CMIA matters.

Victims in CMIA matters

  1. 2.69 The Second Reading Speech for the Crimes (Mental Impairment and Unfitness to be Tried) Bill highlighted that the legislation sought to give ‘due consideration to the issue of victims’ rights’.69 These rights underpin various provisions of the CMIA relating to the Director of Public Prosecution’s obligation to give notice of particular hearings and provide information about outcomes in hearings to victims of offences in matters under the CMIA.70 They also underpin the right of victims under section 42 of the CMIA to provide information in a report to the court for various purposes.71
  2. 2.70 The Victims’ Charter Act2006 (Vic) also underpins these provisions as the key piece of legislation in recognising the ‘principles that govern the response to persons adversely affected by crime by investigatory agencies, prosecuting agencies and victims’ services agencies’.72
  3. 2.71 The Victims’ Charter Act sets out general principles governing the response to victims of crime. It states that:

All persons adversely affected by crime are to be treated with courtesy, respect and dignity by investigatory agencies, prosecuting agencies and victims’ services agencies.73

  1. 2.72 As part of the principles, the Victims’ Charter Act also sets out the rights of victims of crime, including the right to have particular information about relevant processes and court proceedings and their outcomes.74 The Victims’ Charter Act also allows victims to provide information to the court via a process for making a ‘victim impact statement’ that may be considered by the court in determining the sentence of the offender.75
  2. 2.73 The Sentencing Act 1991 (Vic) also recognises this right by allowing a victim to make a victim impact statement to assist the court in determining sentence. The statement may include information on the impact of the offence on the victim and any injury, loss or damage suffered by the victim as a direct result of the offence.76
  3. 2.74 Since the CMIA was introduced in 1997, there has been substantial development in the conceptualisation of victims’ rights and interests in court procedures and decision making. A potential issue for consideration, discussed in Chapter 9 at [9.77]–[9.86], is whether the CMIA sufficiently reflects these developments.
  4. 2.75 The Office of Public Prosecutions has recently produced a guide for victims involved in CMIA matters to facilitate greater participation by them in the prosecution process.77 This reflects the increasing recognition of the importance of victims’ rights and participation in CMIA processes.
  5. 2.76 The guide explains the court process where people with a mental condition are prosecuted for serious crimes and outlines the circumstances under which a victim or family member report can be made. It is aimed at increasing the input from victims, both at the initial stages of the process in prosecution, but also at the stages when supervision orders are made and reviewed by the court. In launching the guide in November 2012, the Director of Public Prosecutions, John Champion SC said:

The development of this brochure will give victims involved in mental impairment matters a voice; facilitate greater participation by them in the prosecution process; and will give the court a more complete picture of the circumstances of the offending and the impact of the crime that may not otherwise have been provided by the prosecution during various hearings.78

Family members of people subject to the CMIA

  1. 2.77 Family members of people subject to the CMIA also have similar rights in recognition of the particular difficulties that can exist in the circumstances of matters under the CMIA. For example, it is quite common for the victims of offences in CMIA matters to be family members of the accused person, meaning that they are often victims of crime under the CMIA as well as family members of the accused person. Ruffles reported in 2010, that almost half (42.5 per cent) of the offences committed by the 146 people found not guilty because of mental impairment in her study were committed against an immediate family member, with 16.5 per cent of victims being a person’s spouse or partner.79 Therefore, in many cases family members of people subject to the CMIA can be experiencing trauma, loss and grief as victims.
  2. 2.78 The provisions relating to notice requirements and providing information to the court also apply to family members of a person who is subject to a supervision order under the CMIA.80
  3. 2.79 The guide on prosecuting mental impairment released by the Office of Public Prosecutions is also aimed at assisting family members of people subject to the CMIA in court processes under the CMIA.
  4. 2.80 Family members are also recognised as key support people in the treatment and gradual reintegration of people under the CMIA.81 Forensicare’s brochure for family members and carers of people subject to supervision orders describes their role as follows:

Families and carers are widely acknowledged as having a legitimate and appropriate role in supporting a person with a mental illness. Involvement of family and carers in the treatment and support of a person with a mental illness has been found to contribute to reducing the incidence of relapse, improving adherence to treatment and improving the consumer’s quality of life and social adjustment.82

Gradual reintegration

  1. 2.81 Another key principle underpinning the CMIA is the principle of gradual reintegration.
  2. 2.82 The CMIA creates a system for the management of people subject to supervision orders that has been characterised as ‘gradualist’83 or ‘staggered’,84 in recognition ‘that the treatment or reintegration of persons with a mental disorder is most appropriately considered on a gradual basis’.85
  3. 2.83 Unlike the Governor’s pleasure regime before it, the CMIA envisages a pathway for release for a person subject to a supervision order through a system of treatment, management and supervision.
  4. 2.84 The system of gradual reintegration is reflected in a number of features of the CMIA, including:
  • an application for variation or revocation of a supervision order can be made at any time
  • a custodial supervision order must be imposed for 12 months before a court can consider varying it to a non-custodial supervision order, and
  • a non-custodial supervision order is the only supervision order that can be revoked (not a custodial supervision order) and only after a period of at least 12 months extended leave.
  1. 2.85 The CMIA is based on the assumption that this approach is appropriate and can be applied in practice to all people who come under the CMIA, including those with a mental illness and people with an intellectual disability or cognitive impairment. The Commission asks questions about how this approach operates in practice in Chapter 9 at [9.105]–[9.110].
  2. 2.86 Discretion is vested with the court to make the most appropriate order having regard to the matters set out in section 40 of the CMIA. This also provides for decisions to be made that reflect the progress and recovery of a person through their treatment and gradual reintegration.
  3. 2.87 The key role played by mental health and disability service providers also reflects the principle of gradual reintegration. These service providers are responsible for supervising and providing treatment to people subject to supervision orders and to provide information to the court and the Forensic Leave Panel. They provide information on a number of relevant matters, such as the person’s mental condition and behaviour and their response to treatment, therapy and counselling.86 The role and influence of these service providers in decision-making processes is considered in Chapter 9.

Therapeutic focus

  1. 2.88 Connected to the principle of gradual reintegration is the therapeutic focus that underpins the CMIA.
  2. 2.89 This is reflected in the philosophy that the best way of protecting the community from people who are subject to the CMIA is by their recovery or management of their mental condition and return to society.87
  3. 2.90 The CMIA seeks to achieve a therapeutic aim by promoting an increased understanding of and tolerance to mental illness that can give rise to a mental impairment.88 This objective is reflected in changes to the language used in the CMIA, such as the replacement of the term ‘insanity’ with ‘mental impairment.’
  4. 2.91 The therapeutic focus is also reflected in the manner in which CMIA court proceedings are conducted. While working in an adversarial system, CMIA matters may more closely resemble an inquisitorial approach where the judge works with the prosecution and defence in order to determine the best outcome for all parties.
  5. 2.92 The media also have a role in community perceptions and the extent to which members of the community understand the nature of mental conditions and how they can affect the capacity and behaviour of people subject to the CMIA.89 The accurate reporting of CMIA matters in the media can influence the way the community perceives the CMIA system, including the basis for having such a system and how it operates in practice. The question of preventing media reporting of CMIA proceedings by reason of suppression orders is considered in Chapter 9 at [9.111] and following paragraphs.
  6. 2.93 The CMIA’s therapeutic outcomes are reflected in the requirement that in making a range of orders the court is to have regard to the nature of the person’s ‘mental impairment or other condition or disability’ and ‘whether there are adequate resources available for the treatment and support of the person in the community’.90 The express purpose of reports provided by victims and family members is to assist ‘counselling and treatment processes for all people affected by an offence’.91 This also reflects the CMIA’s therapeutic focus.
  7. 2.94 The CMIA’s therapeutic aims are also reflected in the approach taken by the key service providers responsible for the supervision and treatment of people subject to orders under the CMIA. For example, Forensicare has a strong focus on the rights and roles of people who are subject to the CMIA, known as ‘consumers’. Forensicare has described this as follows:

Forensicare has made a commitment to delivering recovery-orientated mental health services and embedding recovery principles in our clinical practice. These principles acknowledge that consumers have a right and responsibility to be an integral part of their own treatment and recovery.92

  1. 2.95 Forensicare works to maximise opportunities for consumers to play a central role in decision making about service delivery and their personal treatment options.93
  2. 2.96 The Office of the Senior Practitioner in the Department of Human Services is responsible for protecting the rights of people with a disability who are subject to restrictive interventions and compulsory treatment. One of the Senior Practitioner’s stated values is to ‘promote wellbeing and social inclusion.’94 The Senior Practitioner has a focus on promoting rights of people with an intellectual disability. For example, in 2010, a program was piloted that aimed to ‘empower people with a disability subject to restrictive interventions with knowledge about their rights and responsibilities.’95 The Office of the Public Advocate also works to promote and protect the rights and dignity of people with disabilities.
  3. 2.97 A key issue identified by the Commission’s preliminary research is whether there are adequate safeguards for the protection of the rights and promotion of responsibilities for people with an intellectual disability under the CMIA.
  4. 2.98 The provisions on suppression orders in proceedings under the CMIA also reflect the notion that the process should be therapeutic if possible, rather than stigmatising. Section 75(1) provides that a court may make a suppression order in any proceeding under the CMIA, if it is ‘in the public interest to do so’.96 Included in the public interest is the important interest of the person and their ‘progressive rehabilitation not being deflected or defeated’.97
  5. 2.99 However, the other important interest to be balanced in the concept of ‘public interest’ is openness of the judicial process. Under this principle:

The powerful and fundamental value of the community’s knowledge of the judicial process in its midst should not be whittled down by a developing habit of suppression.98

Transparency and accountability

  1. 2.100 Transparency and accountability is a key principle that runs through the CMIA, both for members of the community and the person subject to its processes. The introduction of the CMIA in place of the Governor’s pleasure regime addressed the

legitimate concern of the community for open process … [The CMIA] is a signal advance in that it removes the determination of these matters from executive discretion in private to judicial decision in public … It is of the essence of the judicial process that it is public. The courts, rightly, have always resisted pressure to function in private.99

  1. 2.101 To ensure transparency and accountability in proceedings where the accused person is unfit to stand trial and/or not guilty because of mental impairment, publicly acknowledging that an offence was committed is important. Even where the accused person is not criminally responsible for their actions, those actions have consequences and it should be remembered that it is likely that members of the community will have been significantly affected. The CMIA ensures that there is a fair hearing of the alleged offence and public record of the outcome.
  2. 2.102 Transparent decision-making processes regarding the leave provisions and accessibility of leave provisions to people subject to supervision orders are provided for under the CMIA in a number of ways, including:
  • leave decisions are made by the Forensic Leave Panel, a judicial panel, specially constituted to hear leave applications100
  • the Forensic Leave Panel must give reasons for any decision and if the reasons are given orally, a person applying for leave may ask to have them put into writing101
  • the right of a person applying for leave to appear and be represented by a legal practitioner or any other person authorised by the person,102 and
  • the requirement that grants of leave for longer periods (extended leave for less than 12 months) are only granted by the court to ensure decisions are made by an independent judiciary and subject to appeal rights.103
  1. 2.103 The Forensic Leave Panel ‘may inform itself in relation to any matter in such manner as it thinks fit’.104 It is not bound by the rules or practice of evidence that generally apply in proceedings, such as criminal trials. However, it is required to ‘act according to equity and good conscience’ and is ‘bound by the rules of natural justice’.105
  2. 2.104 The right to a fair trial and other procedural rights, such as the right to appeal against a decision made by a court, also support the principle of transparency and accountability.
  3. 2.105 The appeal rights throughout the CMIA also reflect principles of transparency and accountability. The review of decisions strengthens the transparency and accountability of the process by protecting against miscarriages of justice, maintaining consistency between trial courts and providing legitimacy to the criminal justice system.106
  4. 2.106 People subject to supervision orders, the Director of Public Prosecutions, the Attorney-General, the Department of Health and the Department of Human Services all have appeal rights. The appropriateness of the roles of these different parties and the interests that each party represents are discussed in Chapter 9 at [9.71]–[9.104].

Principles governing the treatment of people with a mental condition

  1. 2.107 In addition to the principles identified as underpinning the CMIA, there are a number of general principles governing the treatment of people with a mental impairment who are subject to the provisions of the CMIA.
  2. 2.108 A number of international and national legal instruments set standards for protecting the rights of people with a mental impairment.

Human rights

  1. 2.109 International legal instruments that govern the rights of people with a mental impairment include the following:
  • International Covenant on Civil and Political Rights—provides general human rights protections to all people.107
  • Convention on the Rights of Persons with Disabilities108promotes equality of people with a disability and includes measures to raise awareness regarding people with a disability including promoting ‘positive perceptions and greater social awareness towards people with disabilities’.109
  • Principles for the protection of persons with mental illness and the improvement of mental health care110—contains principles aimed to ensure that ‘a mentally ill person is to have all the rights of any other person, and is to be free from discrimination’.111
  • Convention on the Rights of the Child—provides among other rights, protections to children receiving treatment for illness or who have been deprived of their liberty.112
  • Declaration on the Rights of Disabled Persons113—promotes the rights of people with disabilities.
  • Standard Minimum Rules for the Treatment of Prisoners—provide guidance as to ‘what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions’.114

National principles

  1. 2.110 The National Mental Health Policy 2008 is part of the National Mental Health Strategy and was developed and endorsed by the Commonwealth and State and Territory governments with one of its aims being to assure the rights of people with a mental disorder.115 The Fourth National Mental Health Plan: An agenda for collaborative government action in mental health 2009–2014 supports this strategy and provides ‘an overarching vision and intent for the mental health system in Australia and embeds the whole of government approach to mental health reform’.116
  2. 2.111 The National Statement of Principles for Forensic Mental Health aims ‘to provide cohesion and credibility so that optimal diagnosis, treatment and rehabilitation can be provided to clients of forensic mental health services’.117 This document contains 13 principles that cover a range of topics including the rights and responsibilities of patients and service providers, safety of patients, access to services, service quality and effectiveness, ethical standards, workforce skills and transparency and accountability in decision making.
  3. 2.112 The Commonwealth’s Mental Health Statement of Rights and Responsibilities was developed in 1991 to ensure that ‘consumers, carers, advocates, service providers and the community were aware of their rights and responsibilities’.118
  4. 2.113 Many changes in the law and clinical practice have occurred since the statement was developed and a review was therefore initiated to ensure it reflects contemporary mental health care and human rights law. The revised Mental Health Statement of Rights and Responsibilities was released in 2012. The revised statement provides that:

Mental health consumers who come into contact with the criminal justice or the forensic mental health system have the right to access:

(a) specialist justice programs that respond to their mental and physical health needs where this is reasonable and appropriate

(b) referral, assessment, individualised care planning, support, treatment, rehabilitation and services that facilitate or support recovery

(c) their carers and support persons.119

  1. 2.114 The Principles for Recovery Oriented Practice are contained within the National Standards for Mental Health Services 2010 and aim to ensure that mental health services are being delivered in a way that supports the recovery of mental health consumers.120

Victorian law

Mental Health Act 1986 (Vic)

  1. 2.115 The Mental Health Act 1986 (Vic) outlines principles for the treatment and care of people with a mental disorder in Victoria. A therapeutic focus is evident in the principles of the legislation. It states that people with a mental disorder are to be involved in the development of their own treatment plan wherever possible and should be provided with comprehensive information about their mental disorder and proposed and alternative treatments.121 It also states that treatment and care should promote and assist self-reliance.122
  2. 2.116 The Mental Health Act also provides for the principle of least restriction. Care and treatment is to be provided in ‘the least possible restrictive environment and least possible intrusive manner consistent with the effective giving of that care and treatment’.123 Further it requires that ‘any restriction upon the liberty of patients and other people with a mental disorder and any interference with their rights, privacy, dignity and self-respect are kept to the minimum necessary in the circumstances’.124
  3. 2.117 Consistent with the principle of least restriction, other principles in the legislation state that wherever possible treatment should be provided in the community or near the home of the person with a mental disorder or the home of their friends or relatives.125
  4. 2.118 The Mental Health Act is currently under review. The new proposed legislative framework will seek to promote recovery-oriented practice. Central to the reforms is a supported decision-making model of treatment and care. The framework aims to ‘enable and support compulsory patients to make decisions about their treatment and determine their individual path to recovery’.126

Disability Act 2006 (Vic)

  1. 2.119 The Disability Act 2006 (Vic) outlines a number of principles to promote and protect the rights of people accessing disability services.
  2. 2.120 One of the principles provides that ‘persons with a disability have the same rights and responsibilities as other members of the community and should be empowered to exercise those rights and responsibilities’.127 These rights include:
  • the right to respect for their human worth and dignity as individuals
  • the right to live free from abuse, neglect or exploitation
  • the right to exercise control over their lives
  • the right to participate in decisions and access information and obtain services that support their quality of life.128
  1. 2.121 The Disability Act also outlines principles that disability services should adhere to in order to ensure the rights of people accessing services are protected. For example, that services should be flexible and responsive to the individual needs of a person with a disability.129
  2. 2.122 Consistent with the principles in the CMIA, the Disability Act provides for the principles of least restriction. The Disability Act states that ‘a restriction on the rights or opportunities of a person with a disability is necessary, the option chosen should be the option which is the least restrictive of the person as is possible in the circumstances’.130

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