3. An overview of the CMIA

Introduction

  1. 3.1 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA) creates a specialised pathway for people charged with an offence and who have a mental impairment that affects their capacity to participate in the normal criminal process. A person is liable to be subject to a different supervision regime to the usual sentencing process if they are:
  • unfit to stand trial and found to have committed the offence or to be not guilty because of mental impairment, or
  • found not guilty because of mental impairment.
  1. 3.2 This chapter provides a snapshot of the CMIA pathway. It commences with a brief overview of the legislation, including the purposes of the CMIA and the key process aspects. It then discusses the relevance of mental impairment to the criminal justice system generally, prior to focusing on the particular group of accused people who come within the CMIA. It then describes the CMIA process and the points in the criminal justice system where a person may enter and follow the specialised pathway created by the CMIA.

Overview of the CMIA legislation

  1. 3.3 Section 1 of the CMIA sets out its purposes as follows:

(a) to define the criteria for determining if a person is unfit to stand trial;

(b) to replace the common law defence of insanity with a statutory defence of mental impairment;

(c) to provide new procedures for dealing with people who are unfit to stand trial or who are found not guilty because of mental impairment.

  1. 3.4 The CMIA sets out the law and procedure that governs:
  • the process and criteria for determining if a person is unfit to stand trial
  • the process and criteria for the statutory defence of mental impairment (which replaced the common law defence of ‘insanity’)
  • the consequences of findings of unfitness to stand trial and not guilty because of mental impairment, and
  • the supervision and management of people found unfit to stand trial or not guilty because of mental impairment.
  1. 3.5 There are 10 primary parts to the CMIA, each of which relates to the key aspects of the process.
  • Part 1: preliminary matters—the purposes of the CMIA, definitions and the proceedings and courts where the CMIA applies.
  • Part 2: unfitness to stand trial—the process and criteria for determining whether an accused person is unfit to stand trial, the findings that can be made and appeals in relation to unfitness to stand trial.
  • Part 3: special hearings—the process for the hearing that occurs after an accused person has been found unfit to stand trial, to determine whether he or she committed the offence charged, the findings that can be made and appeals in relation to special hearings.
  • Part 4: defence of mental impairment—the process and test for determining whether an accused person is not guilty of an offence because of mental impairment, the findings that can be made and appeals in relation to the mental impairment defence.
  • Part 5: supervision of people under the CMIA—supervision orders, the process for making supervision orders, the process for reviewing, varying and revoking supervision orders and the parties that are represented in the supervision and review processes.
  • Part 6: principles—the principles on which the court is required to act in making, reviewing, varying and revoking supervision orders, information about the person’s mental condition and available treatment services and information from family members and victims.
  • Part 7: leave of absence—types of leave for people subject to a supervision order under the CMIA, processes for applying for, granting, suspending and revoking leave, the bodies and parties involved in leave processes and principles that apply to granting leave.
  • Part 7A: interstate transfer—provisions that apply to the transfer of people subject to a supervision order from Victoria to other states and other states to Victoria.
  • Part 7B: absconders—provisions that apply to people subject to a supervision order who abscond to Victoria from another state.
  • Part 8: general—requirements for giving notice of hearings to family members and victims, suppression orders and other procedural matters.
  1. 3.6 Whether the issues of unfitness to stand trial and the defence of mental impairment may require examination is dependent on the timing of the mental condition. Table 1 sets out the relevant issues to be determined and processes for unfitness and the mental impairment defence.

Table 1: Process and timing of determining unfitness to stand trial and the mental impairment defence

  1.  

    Time of trial

    Time of offence

    Issue to be determined

    Whether the accused person is unfit to
    stand trial

    Whether the accused person is not guilty because of mental impairment

    Process

    Investigation into unfitness

    Trial or special hearing
    (if the person is unfit)

  2. 3.7 The provisions of the CMIA largely apply to trials and proceedings for indictable offences in the higher courts (the Supreme Court and County Court).1 The defence of mental impairment applies to summary offences and indictable offences heard and determined summarily in the Magistrates’ Court.2 However, the unfitness to stand trial process does not apply in the Magistrates’ Court.

Mental conditions and the criminal justice system

  1. 3.8 In examining the pathway created by the CMIA, it is important to understand the prevalence of mental conditions in the population of people who have contact with the criminal justice system. This cohort of people presents particular challenges, given their vulnerability and disadvantage. In recognition of this, specialised approaches are required in responding to people with a range of different mental conditions in the criminal justice system including in police practices, the provision of legal advice, court processes and sentencing.
  2. 3.9 Within this cohort, the CMIA has a very strict ambit of application. It only applies to people whose mental condition is such that it impairs their capacity to stand trial or provides a defence to a charge. The meaning of the term ‘mental impairment’ under the CMIA is discussed in Chapter 5.
  3. 3.10 The term ‘mental impairment’ is also used in a variety of other contexts, including mental health, human services and justice sectors. It can have a range of different meanings and there is significant variation in the definitions in each sector. The term can encompass a wide range of mental conditions that affect the mental processes or cognitive functioning of a person, including, but not limited to a mental illness, an intellectual disability or a cognitive impairment.
  4. 3.11 An intellectual disability is a type of cognitive impairment. The Commission’s preliminary research has identified that there are different issues for people with an intellectual disability and for people with other cognitive impairments under the CMIA that require a separate discussion. Therefore, issues relating to intellectual disabilities are discussed separately to issues relating to cognitive impairments.
  5. 3.12 People with mental conditions, such as a mental illness, intellectual disability or cognitive impairment, that may give rise to a mental impairment are ‘overrepresented’ in the criminal justice system. This means that overall the prevalence of people with these impairments is higher than it is in the general population. It is estimated that ‘approximately 55% of offenders at court suffer from some form of mental impairment’.3 This population of people are often vulnerable and disadvantaged, which increases their risk of contact with the criminal justice system and leads to poorer outcomes.
  6. 3.13 The policy of deinstitutionalisation that began in Victoria in the 1980s is also a relevant factor. Providing treatment in the community was an important step in giving people with mental illness and intellectual disabilities greater control over their own lives.4 However, resources continued to be concentrated in hospital settings and:

[f]or many persons – particularly those with mental illness – services have been difficult to access in the community, resulting in a lack of support and often a deterioration in mental health. The process of deinstitutionalisation has seen people with a mental impairment have increased contact with the criminal justice system. This contact appears to have been exacerbated by the over representation of this group in the homeless population.5

  1. 3.14 The concerning prevalence of and inherent difficulties caused by mental illness, intellectual disability or cognitive impairment in criminal justice populations have been the subject of discussion and comment in the media and by those working in the criminal justice, mental health and human services sectors.6
  2. 3.15 These issues are heightened when a person has more than one condition that affects their mental processes and behaviour. The Multiple and Complex Needs Initiative (MACNI) provides services for people who have combinations of mental illness, substance abuse issues, intellectual impairment, acquired brain injury and contact with the criminal justice system. This collaborative approach between the Department of Human Services, the Department of Justice and the Department of Health recognises that specialist services may be required for those people who are most vulnerable in society given their multiple and complex needs. MACNI is governed by provisions of the Human Services (Complex Needs) Act 2009 (Vic).

Mental illness

  1. 3.16 Mental illness is defined in the Mental Health Act 1986 (Vic) as ‘a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory’.7 It can include conditions such as depression, schizophrenic disorders, bipolar affective disorder, obsessive-compulsive disorder and post traumatic stress disorder.8
  2. 3.17 The lifetime prevalence9 of psychotic disorders in the Australian population has been estimated at 3.5 per cent for men and 2.2 per cent for women.10
  3. 3.18 An Australasian study, however, found that almost half (49 per cent) of police cell detainees were ‘experiencing a diagnosable mental disorder according to the diagnostic criteria of a validated screening instrument.11 Consistent with these figures, a Victorian study conducted in 2011 of detainees in police cells found that:

More than half of police cell detainees had previously had contact with public mental health services at some point during their lives … The prevalence of diagnosed psychiatric illnesses was high with 10% suffering psychosis and another 10% suffering an affective illness.12

  1. 3.19 Mental illness is also more prevalent among prisoners compared with the general population. In 2012, the Australian Institute of Health and Welfare (AIHW) reported that almost a third (31 per cent) of the 610 prison entrants in the 2010 Census across Australia (excluding New South Wales and Victoria) reported a history of mental disorders.13 The AIHW compared this to the self-reported prevalence of mental and behavioural problems recorded by the Australian Bureau of Statistics in 2009 in the general population (11 per cent).14 In 2011, the Victorian Ombudsman reported that ‘[a]lmost one third of Victoria’s male prisoners have diagnosed mental health conditions’.15
  2. 3.20 This is consistent with many studies showing the overrepresentation of people with a major mental illness in prison populations. For example, Mullen, Holmquist and Ogloff reported that ‘up to 8% of male and 14% of females in… (Australian) prisons have a major mental disorder with psychotic features’.16 The comparative lifetime prevalence rates for schizophrenia and psychotic disorders in the general population are 0.3 per cent to one per cent.17 In referring to these studies and other research, it has been observed that:

Rates of the major mental illnesses, such as schizophrenia and depression, are between three and five times higher in offender populations than those expected in the general community … The prevalence of mental illness is even higher in offenders remanded prior to trial.18

  1. 3.21 The overrepresentation of people with a mental illness in the criminal justice system does not mean that mental illness alone causes offending or a higher rate of re-offending:

[W]hile most people with a mental illness do not offend, they are at greater risk for engaging in offending and violent offending than others in the community. Moreover, this risk elevates when the mentally ill person also has a co-occurring substance use disorder.19

  1. 3.22 Further, there are a number of factors that have been identified as contributing to the high numbers of people with mental illnesses in the criminal justice system, including:

the deinstitutionalisation of mentally ill people, an increase in the use of drugs and alcohol by people with mental illnesses, and the limited capacity of community-based mental health services to address the needs of mentally ill offenders.20

  1. 3.23 The behavioural, emotional and cognitive problems that can be caused by a mental illness can present particular difficulties for people at various stages in the criminal justice system. These problems can make them more vulnerable and at greater risk of harm, particularly in the prison environment.21 The disadvantages that are associated with mental illness, such as homelessness, poverty and risky behaviours, can also put people at greater risk of coming into contact with the criminal justice system.22

Intellectual disability

  1. 3.24 In its recently published report, Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers, the Victorian Parliament Law Reform Committee (Law Reform Committee) described the term ‘intellectual disability’ as generally referring to ‘a person who has difficulty learning or managing daily living … a condition that is either evident at birth, or is expressed before a person reaches adulthood’.23
  2. 3.25 The Disability Act 2006 (Vic) defines a person with an intellectual disability as a person with both significant sub-average general intellectual functioning and significant deficits in adaptive behaviours, which become apparent before the age of 18 years.24 Generally, an intellectual disability is a permanent condition. However, a person with an intellectual disability may experience positive changes in the level of intellectual functioning and behavioural deficits with appropriate supports or programs.25
  3. 3.26 People with an intellectual disability are commonly over represented in prison populations when compared with the prevalence of intellectual disability in people in the general community.26
  4. 3.27 A study conducted in 2007 by the Department of Justice reported that during 1 July 2003 to 30 June 2006, the prevalence of intellectual disability among prisoners27 in Victoria was 1.3 per cent. The study reported that this was only marginally higher than the prevalence of intellectual disability among the general Victorian population (estimated to be 1 per cent).
  5. 3.28 However, evidence given by Dr Peter Perrson, Manager of the Disability, Ageing and Youth portfolio in Corrections Victoria to the Law Reform Committee confirms that people with an intellectual disability are over represented in the prison population in Victoria. Dr Perrson said that 2.5 per cent of Victoria’s prison population is currently identified as having an intellectual disability.28
  6. 3.29 It is clear from a number of sources that people with an intellectual disability have particular vulnerabilities in the criminal justice system and present challenges. The Department of Justice Corrections Research Paper 2007 included findings on a range of socio-demographic and criminological variables, of prisoners with an intellectual disability, which reveal that such prisoners are:

characterised by significant involvement with the criminal justice system … a high risk of re-offending, difficulties with moving to minimum security and obtaining parole, higher rates of involvement in incidents within prisons, and significant literacy, homelessness, employment and psychiatric issues.29

  1. 3.30 The study concluded on the basis of these findings that people with an intellectual disability in prison are ‘a group with complex histories and needs, presenting considerable management and rehabilitation challenges for both the correctional system, the broader forensic disability and disability service systems, and the wider community’.30
  2. 3.31 The vulnerabilities and disadvantages faced by people with an intellectual disability when they come into contact with the criminal justice system was also strongly emphasised by many submissions to the Law Reform Committee in its recent inquiry.31

Cognitive impairment

  1. 3.32 The term cognitive impairment is a broader term that can encompass a range of disabilities and conditions. Cognitive impairment is described by the Law Reform Committee as a term that is:

generally used to refer to a person who has suffered from a loss of brain function that affects his or her judgement. Cognitive impairment is a broad concept that encompasses learning disabilities, acquired brain injuries (ABIs), drug or alcohol abuse, neurological disorders, tumours, and autism spectrum disorders. Often, although not always, the term ‘cognitive impairment’ refers to conditions acquired after maturity.32

  1. 3.33 The term cognitive impairment could also encompass other disabilities or conditions such as Alzheimer’s disease, dementia, multiple sclerosis,33 a mental illness, personality disorder or an intellectual disability that ‘affect[s] insight or make[s] it difficult for a person to control his or her behaviour’.34
  2. 3.34 People with a cognitive impairment are over represented in the criminal justice system when compared with estimates of incidence of intellectual disability and cognitive impairment in the community.35

Acquired brain injury

  1. 3.35 Significant concerns have recently been expressed about the prevalence of acquired brain injury in criminal justice populations. Acquired brain injury describes any type of brain injury that occurs after birth. Examples of brain injuries that can result in an acquired brain injury include those caused by motor vehicle accidents, chronic alcohol abuse and substance abuse. Brain injuries can also occur where there has been a loss of oxygen to the brain from events such as a stroke, heart attack or drug overdose.36 Other common causes are infection and neurological disease.37
  2. 3.36 Acquired brain injury has been described as the ‘”hidden” or “invisible” disability’.38 The reported prevalence rate of acquired brain injury in the Australian community is only 2.2 per cent.39 However, a recent Victorian study has shown that ‘[o]n the basis of comprehensive neuropsychological assessment, 42 per cent of male prisoners and 33 per cent of female prisoners were assessed as having an [acquired brain injury]’.40 A print media article on the issue highlighted the connection between acquired brain injury and substance use and the effects the condition can have on behaviour, including ‘disordered behaviour, poor organisation, propensity towards substance use’.41 Traumatic brain injury has also been found to be highly prevalent among prisoners.42
  3. 3.37 In its submission to the Law Reform Committee, Villamanta Disability Legal Rights Centre stated that Victoria does not systematically identify and respond to prisoners with an acquired brain injury.43
  4. 3.38 People with a cognitive impairment, such as an acquired brain injury can experience a range of disadvantages, which can increase the risk that they will become involved in the criminal justice system. For example, many people with an acquired brain injury who have contact with the criminal justice system face a range of complex circumstances and have complex needs, which can be exacerbated by that contact. They may also experience co-existing mental illness, alcohol or drug dependence, health complaints, breakdown of the family unit or unstable accommodation.44
  5. 3.39 There is no clear causal link between acquired brain injury and offending. Nevertheless, some of the cognitive-behavioural changes that commonly occur with an acquired brain injury can increase the risk of a person’s contact with the criminal justice system. These include disinhibition and impaired impulse control, poor social judgement, low-frustration tolerance and anger and aggression.45 However, the Law Reform Committee noted that people with a cognitive impairment ‘tend to have a more diverse range of lived experiences … These experiences could include more formal education and training, employment, and long-term relationships with spouses and friends’.46

Fetal alcohol spectrum disorder

  1. 3.40 Another cognitive impairment that has prompted recent concern regarding contact with the criminal justice system is fetal alcohol spectrum disorder. This impairment is associated with excessive consumption of alcohol by mothers during pregnancy. It can result in particular physical features and ‘a complex pattern of cognitive impairments, including learning difficulties, poor impulse control and deficits in capacity to exercise judgment, social abstraction, language expression and memory’.47
  2. 3.41 Fetal alcohol spectrum disorder is a ‘functional impairment’ that affects the executive functions of a person such as decision making and interaction with others.48 It is one of the foremost non-genetic causes of intellectual impairment.49 Fetal alcohol spectrum disorder has been identified as a significant issue in some Indigenous communities in Australia,50 although ‘it is no means confined to them’.51 In Victoria, it occurs equally in Indigenous and non-Indigenous births.52
  3. 3.42 There is little data on the prevalence of the disorder Australia-wide or in the criminal justice population in the Australian, or Victorian, context.53 However, two Commonwealth Parliamentary Standing Committees have recognised the connection between fetal alcohol spectrum disorder and the involvement of young people with the criminal justice system.54 Most recently, in 2012 the Standing Committee on Social Policy and Legal Affairs in its report on a national approach to the prevention, intervention and management of fetal alcohol spectrum disorder recommended that it be recognised that people with fetal alcohol spectrum disorder have a cognitive impairment.55

The CMIA cohort

  1. 3.43 The cohort captured by the CMIA is a very small proportion of the total number of people who come into contact with the criminal justice system and have a mental condition.
  2. 3.44 The CMIA applies to a particular group of people who are charged with a criminal offence and who because of a mental condition are found upon specific criteria to be unfit to stand trial or not guilty because of mental impairment.
  3. 3.45 Within the cohort of people subject to the CMIA, a further division can be made based on the particular mental condition that underlies a finding of unfitness to stand trial or the particular mental impairment that underlies a finding of not guilty because of mental impairment. The population of people who have a mental condition and are subject to the CMIA can be broken into two smaller cohorts based on the type of mental condition and the different assessment, treatment and support needs of each group. People in each cohort may also follow a different ‘pathway’ through the CMIA according to the nature of the mental condition, their ability to progress through the system and the services and treatment that may be available. They are:
  • people with a mental illness, and
  • people with an intellectual disability or cognitive impairment.
  1. 3.46 Cases involving co-occurring mental conditions, such as an intellectual disability and mental illness, are also particularly complex in the CMIA cohort.

Characteristics of the CMIA cohort

  1. 3.47 In 2010, Ruffles published a study of the period to November 2006, of people in Victoria who had been found not guilty because of mental impairment. The study included some people who were being supervised under both the Governor’s pleasure regime and the CMIA. The study gave some indication of the characteristics of the cohort. However, the study did not include people found unfit to stand trial so it does not give a complete picture.
  2. 3.48 Of the 146 people included in the study:
  • 98 had been detained under a custodial supervision order (45 were given a disposition under the Governor’s pleasure regime and 53 were given a custodial supervision order under the CMIA)
  • 48 were given a non-custodial supervision order.
  1. 3.49 Based on an analysis of the socio-demographic, psychiatric and criminological characteristics of the 146 people included, Ruffles described the typical person found not guilty because of mental impairment as follows:
  • a Caucasian single male with a disadvantaged and marginalised background
  • in his early to mid-40s and was in his mid-30s when he committed the offence in question
  • unemployed, unskilled and has not completed secondary schooling
  • a strong history of involvement with psychiatric services that is likely to have included at least one involuntary admission to a psychiatric service and a diagnosis of schizophrenia
  • a 50:50 chance of having a history of drug and/or alcohol misuse
  • a family history of mental illness
  • a one in three chance of having experienced some form of childhood abuse or violence within the family home
  • no history of prior convictions and the contact with the criminal justice system that resulted in the finding of not guilty because of mental impairment was an isolated event.56
  1. 3.50 Based on this, Ruffles concluded that:

the picture of the typical NGRMI [not guilty by reason of mental impairment] acquittee that emerged was of a disenfranchised and seriously disordered individual with a strong history of contact with psychiatric services but whose contact with the criminal justice system resulting in the verdict of NGRMI was often an isolated event.57

  1. 3.51 While this study may provide a ‘typical’ profile of a person found not guilty because of mental impairment under the CMIA, there are a diverse range of people represented in this cohort. The age of people in Ruffles’ study ranged from 19 to 81 years and while only 15.8 per cent were female ‘they were over-represented when compared to all correctional admissions’.58 Fourteen per cent of people in the study identified as having English as a second language, 26 per cent were born outside Australia and 2.7 per cent identified as being Aboriginal or Torres Strait Islander.59
  2. 3.52 The majority of the 146 people detained under a supervision order were forensic patients and 10 people (6.8 per cent) were forensic residents who were managed by Disability Services as they had an intellectual disability or cognitive impairment rather than a mental illness.60
  3. 3.53 The Ruffles study presents a picture of the CMIA ‘mental illness’ cohort and the pathway of people with a mental illness under the CMIA. Less is known about the characteristics of the ‘intellectual disability and cognitive impairment cohort’ and the pathway followed by such people under the CMIA.

The CMIA pathway

  1. 3.54 The CMIA governs the process from the time a person charged with an offence appears in court. However, if a person has a mental condition, their pathway to the CMIA may commence at some point prior to their first contact with the criminal justice system and may in fact be precipitated by a lack of contact with other services, such as mental health or disability services.
  2. 3.55 This section provides an overview of the specialised pathway created by the CMIA. A flowchart of the CMIA pathway is contained in Appendix A.

What is the first point of contact for a person under the CMIA?

  1. 3.56 For a person subject to the CMIA, police officers are likely to be the first point of contact with the justice system. Police have a ‘gatekeeper’ role in the exercise of their discretion in conducting investigations and in charging an accused person.
  2. 3.57 Police also play a pivotal role in the identification of people who come into contact with the justice system and may have a mental illness, intellectual disability or cognitive impairment. Early identification of these mental conditions is integral to the fairness of the investigation process and can be crucial to what happens to a person in later stages of the process.
  3. 3.58 The profile of the typical person who has been found not guilty because of mental impairment in Ruffles’ study, suggests that many people who become subject to the CMIA will have had prior contact with mental health or disability services. However, in some cases, it may in fact be a lack of current contact with the appropriate services that has resulted in an unidentified or relapsed mental illness or a lack of supports around a person with an intellectual disability or cognitive impairment, which has ultimately resulted in behaviour that constitutes offending, often very serious.
  4. 3.59 A person’s entry into the CMIA pathway provides an opportunity for a person who requires treatment and support from mental health and disability services to be connected, or re-connected, to those services.

Identification of mental illness

  1. 3.60 Current police procedure for identifying people who may have a mental health issue or a cognitive impairment is through observation and investigation of previous contact with the justice and mental health system. Police will observe ‘their words or actions, by asking the person directly, by checking police records of any previous interactions, or by contacting their nearest Mental Health Triage to check whether the person is, or has been, a patient of a mental health service’.61
  2. 3.61 A forensic medical officer can undertake an assessment and provide clinical advice on whether a person is fit for a police interview, fit for charging or fit to plead in court. The outcome of the assessment can be used as evidence in court.62 In undertaking an assessment, the forensic medical officer will assess, among other things, the person’s ability to understand the nature of the questioning, the ability to follow questioning, give instructions to legal representation and understand when they are being given a caution.63

Police interviews and investigations

  1. 3.62 If police believe the person has a cognitive impairment, they must arrange for an independent third person to be present during the interview.64 The Office of the Public Advocate administers the independent third person program. The role of the independent third person is to:
  • facilitate communication between police and the person being interviewed
  • provide emotional support to the person being interviewed, and
  • ensure that the person understands their rights.65
  1. 3.63 This is one way of ensuring fairness and that a person understands their right to silence during a police interview. This is particularly important given the probability that:

a large proportion of people with an intellectual disability or cognitive impairment who come before police will not understand the caution and the consequences of failing to exercise their right to silence.66

  1. 3.64 Cognitive behavioural problems commonly associated with acquired brain injury (ABI) can also impact on a person’s ability to interact with the police, lawyers and the courts:

Difficulties with memory are very common after a brain injury. During [a] police interview, a person with ABI may not be able to recall certain events, and may feel pressure to answer questions, despite having no effective recollection of the events. Some individuals will succumb under interrogation and offer information that is not based in fact, or admit to a crime they did not commit. Many people with [acquired brain injury] have difficulties with language and communication, and they may not be able to effectively express themselves, comprehend what is said to them or read written material. As a result, they need skilled communication support when being interviewed by Police.67

  1. 3.65 Intellectual disabilities and cognitive impairments require a different response from police to mental illness as these mental conditions each have different causes, effects and expressions.68 While some studies show improvements in the way in which police manage people with mental illness, intellectual disability and cognitive impairments, others indicate further improvements are required.
  2. 3.66 A study exploring perspectives on police identification of and responses to people with an intellectual disability in Victoria suggested that:

[P]olice are generally better at identifying and responding to ID [intellectual disability] than earlier literature has suggested. Overall, interactions at this interface were considered to be very positive, but further training needs were identified particularly with respect to providing the emotional support needs of interviewees.69

  1. 3.67 The Law Reform Committee report, however, recommended options for improving the identification of people with an intellectual or cognitive impairment by the police. These recommendations were in response to the finding that:

[T]he amount of time it takes for police investigations to be conducted may adversely affect the ability of a person with an intellectual disability or cognitive impairment to recall events.70

  1. 3.68 The Law Reform Committee recommended more detailed guidance for police on how to improve communication with people with an intellectual disability or cognitive impairment. It was recommended that Victoria Police develop separate sections in the Victoria Police Manual for ‘guidance on mental illness, intellectual disability and cognitive impairment respectively’.71

Police discretion to charge a person

  1. 3.69 Once police have conducted any interviews and investigations, they may decide to charge a person whom they have questioned or taken into custody. In situations where the police have decided to charge the accused person, they may either:
  • arrest and charge the accused person, or
  • send the accused person a summons to appear at court (usually where the offence is less serious).
  1. 3.70 In considering whether to charge a person with an offence, the police may also consider referring the person to a diversion program, or giving the person a warning.
  2. 3.71 A study involving Victoria Police officers found that ‘police officers are necessarily afforded considerable discretion when resolving encounters with members of the public, including those who experience mental illness’.72 Data collected as part of the study indicated that:

officers might demonstrate leniency when dealing with people experiencing mental illness who are involved in minor law infractions. These findings might not apply to situations involving more serious offending.73

Bail and remand

  1. 3.72 Once a person is arrested, taken into custody and charged with an offence they must either be brought before a magistrate within a reasonable time or released on bail.74
  2. 3.73 The Commission identified a number of factors in its report on the Bail Act that may influence the ability of a person with a cognitive disability to be released on bail including unstable accommodation, poor decision-making capacity, impulsive behaviour and a lack of social support.75
  3. 3.74 This observation has also been made in relation to people with an acquired brain injury:

A cycle of disadvantage is perpetuated because their disability contributes to impoverished circumstances that preclude eligibility for bail. A person may be in remand for extended periods, particularly if there are delays in going to court. In some cases, people awaiting trial have been held in custody longer than they would have if an early guilty plea had been made.76

  1. 3.75 Upon entry into prison on remand (if bail is refused or not applied for), a person may come into contact with forensic mental health or disability services by way of assessment. Forensic mental health is a specialised field that provides services for mentally disordered offenders. Forensic disability is a specialised field that provides services for people with an intellectual disability or cognitive impairment who come into contact with the criminal justice system.
  2. 3.76 All males who enter the prison system on or after sentence in Victoria are processed through Melbourne Assessment Prison. Forensic mental health clinicians (Forensicare) assess each person. Assessments are also made at Melbourne Assessment Prison in relation to cases heard before the Magistrates’ Court.77 Forensicare provides a similar assessment service for women who enter the prison system at Dame Phyllis Frost.78

Legal representation and advice

  1. 3.77 An accused person is likely to seek legal advice from a private practitioner or a legal service when they are arrested or charged with an offence. The Legal services available include Victoria Legal Aid, the Mental Health Legal Centre, Villamanta Disability Legal Rights Service, Disability Discrimination Legal Service or Youthlaw. If the person does not seek out legal advice of their own volition, they may be referred from forensic mental health or disability services. The majority of people who enter the CMIA pathway obtain legal advice and representation from Victoria Legal Aid or from a community legal centre.79
  2. 3.78 Legal practitioners play an important role in identifying the presence of a mental condition. Identification of mental illness, cognitive impairment or intellectual disability is crucial in making sure that appropriate supports are provided for all people interacting with the justice system. This was highlighted in the recent Law Reform Committee report which stated:

It is essential for lawyers to identify the possibility that a client may have an intellectual disability or cognitive impairment, to ensure that they obtain instructions in an appropriate manner, and to ensure that appropriate matters are presented as evidence in court should it proceed further.80

  1. 3.79 Ethical issues may arise for legal practitioners where the client with a mental condition is unable to provide instructions. For example, where a lawyer is unable to obtain instructions from their client, they may be required to make decisions about whether to rely upon the defence of mental impairment on behalf of the accused. This can create significant ethical issues for the lawyer, particularly given the potentially onerous nature of the CMIA regime. When this occurs, a lawyer may be in ‘a position of conflict when determining how to act in the client’s best interests’.81

Who decides whether a person is unfit to stand trial or has a defence of mental impairment?

Appearing in court

  1. 3.80 Once an accused person is charged with an offence, they will be required to appear in court for a hearing. The categorisation of the offence will determine where it is heard.
  2. 3.81 Criminal offences are categorised as indictable offences (more serious offences) and summary offences (less serious offences).
  3. 3.82 Summary offences are heard in the Magistrates’ Court and a magistrate, rather than a judge and jury, conducts hearings. Prosecutors at Victoria Police generally prosecute matters in the Magistrates’ Court. Indictable offences are generally heard in the Supreme Court or County Court after a committal hearing in the Magistrates’ Court. Prosecutors at the Office of Public Prosecutions are responsible for prosecuting offences on behalf of the Director of Public Prosecutions in the higher courts. Some indictable offences can be tried summarily in the Magistrates’ Court with the consent of the person charged with the offence. A magistrate decides at a committal hearing whether this will occur.
  4. 3.83 In some cases, a person may not have organised legal representation and may not have a lawyer on the day of their hearing. This may be particularly common for people with a mental condition due to the particular disadvantages that they may face. Victoria Legal Aid may provide the person with a duty lawyer, a service provided in Magistrates’ Courts across Victoria. Victoria Legal Aid gives priority to people charged with more serious offences in the Magistrates’ Court and those who have complex needs including those with intellectual disability, acquired brain injury or mental illness.82

Unfitness to stand trial

  1. 3.84 The unfitness to stand trial process (outlined in Chapter 4) only applies in the Supreme Court or County Court.
  2. 3.85 A person is presumed fit to stand trial.83
  3. 3.86 If the issue of unfitness is raised throughout the course of a trial, the accused person will be assessed. Depending on the nature of the person’s mental condition, this assessment will be conducted by a forensic psychiatrist and psychologist, or in some cases, a neuropsychologist.
  4. 3.87 Forensic psychiatrists and psychologists have a role in providing assessments and reports to both defence lawyers and the Office of Public Prosecutions on whether a person is unfit.84 If the person has a mental illness, a psychiatrist will generally assess them. Psychologists generally assess people with an intellectual disability or cognitive impairment. Forensic psychiatrists and psychologists also provide evidence to the court during hearings to determine an accused person’s unfitness and to determine whether the accused person may qualify for a defence of mental impairment.
  5. 3.88 The issue of unfitness to stand trial is about the accused person’s mental processes at the time of the trial. A jury must decide whether it is more likely than not (on the balance of probabilities) that a person is fit or unfit to stand trial (the legal test is set out in Chapter 4 at [4.24]).
  6. 3.89 If a person is found unfit to stand trial, there is a second ‘special hearing’ to consider whether the person committed the offence as charged. A special hearing takes into account the fact that a person who is not fit to stand trial cannot fully participate in the trial process. Criminal procedure is therefore modified in a special hearing to make the trial process fair for a person who is not fit to stand trial.

The defence of mental impairment

  1. 3.90 The defence of mental impairment (outlined in detail in Chapter 5) may be raised at any time during a trial.
  2. 3.91 The issue of mental impairment is about the accused person’s mental processes at the time of the alleged offending. It is essentially focused on whether the person had the capacity to commit the offence as charged. This focuses on whether they had a mental impairment (formerly referred to as a ‘disease of the mind’) and whether it had affected their ability to control or understand their thoughts and actions. A person is presumed not to be mentally impaired at the time of committing the alleged offence.

What happens to a person found unfit to stand trial or not guilty because of mental impairment?

  1. 3.92 When a person has been found either unfit to stand trial and to have committed the offence or not guilty because of mental impairment or to have committed the offence, the court must choose one of the following two options:
  • declare that the person is liable to supervision, or
  • order that the person be released unconditionally.
  1. 3.93 Where a person is found not guilty because of mental impairment in the Magistrates’ Court (for less serious offences), the court must discharge the person.
  2. 3.94 If a court has declared a person to be liable to supervision, they must then place that person on a supervision order.
  3. 3.95 Victims of the offences and family members of the person can also provide input to the court at this stage via a report. The Office of Public Prosecutions provides information and support to victims and family members throughout the whole process, including notice of hearings, information about the outcome of hearings and assistance to make a report to the court prior to it making a supervision order.
  4. 3.96 The court must then decide whether to impose either:
  • a custodial supervision order—under which the person is detained in custody and receives treatment in an approved mental health service or disability residential or treatment service, or
  • a non-custodial supervision order—under which a person can live in the community and receive treatment under supervision from an approved mental health service or disability residential or treatment service and be subject to any other conditions ordered by the court.
  1. 3.97 In both cases, the length of the supervision order is always indefinite. This means that the order has no definite length and can last for the rest of the person’s life. A ‘nominal term’ is imposed by the court to indicate when the order must be reviewed by the court.

How does a person progress through the supervision regime?

  1. 3.98 Once a person becomes subject to a supervision order under the CMIA they are supervised and receive treatment and commence a long process that is designed to provide a ‘staggered’ system of progress towards recovery and eventual release.
  2. 3.99 This process includes monitoring and reviews of supervision orders by the court and/or applications to make changes to the order, depending on the progress and condition of the person.
  3. 3.100 As part of the gradual reintegration of a person under a custodial supervision order, he or she can apply for a leave of absence from the place of custody. These are designed to assist a person to prepare for transition from a custodial setting to the community on a non-custodial supervision order. There are consequences for people who do not comply with the conditions of a non-custodial supervision order or leave.

People with a mental illness

  1. 3.101 The Victorian Institute of Forensic Mental Health (Forensicare), a statutory agency in the Department of Health, is responsible for supervising people with a mental illness under the CMIA. At the end of June 2012, there were 156 people with a mental illness on a supervision order. Of these, there were 69 people on custodial supervision orders and 78 people were on non-custodial supervision orders. A further nine people were in the community on extended leave.85 Forensicare supervises all but one of these orders.86
  2. 3.102 People on a custodial supervision order are detained at Thomas Embling Hospital and managed and treated by Forensicare. The Forensic Leave Panel who hears applications for leave under supervision orders by all people supervised under the CMIA reported that in the calendar year of 2011, there were 67 forensic patients at Thomas Embling.87
  3. 3.103 The Community Operations arm of Forensicare supervises people on a non-custodial supervision order. However, a number of different services can carry out the management and treatment of a person under supervision. Forensicare has the primary responsibility for the treatment and management of people on a custodial supervision order. An area mental health service or private practitioners may have the responsibility for the treatment and management of people subject to a non-custodial supervision order.88 They are also responsible for monitoring whether the person is complying with the conditions of their non-custodial supervision order and identifying and managing any risks.
  4. 3.104 A person’s progress on the supervision will depend, among other factors, on their mental condition and the extent to which they recover. Mental illness is not necessarily a permanent condition. In some cases, a person can have a mental illness for a particular period and recover. In other cases, a person may continue to have the mental condition or the symptoms could fluctuate.

People with an intellectual disability or cognitive impairment

  1. 3.105 Disability services (through the Department of Human Services) supervise people with an intellectual disability or cognitive impairment who are subject to a supervision order under the CMIA. At the end of June 2012, there were 26 people on supervision orders managed by the Department of Human Services.89
  2. 3.106 Disability Forensic Assessment and Treatment Services provide a range of treatment to offenders with an intellectual disability in a residential setting. The Intensive Residential Treatment Program is provided under Disability Forensic Assessment and Treatment Services and is a residential treatment facility under the Disability Act. Another program is the Long Term Rehabilitation Program, which is a residential institution under the Disability Act managed by the Department of Human Services. However, people must meet the eligibility criteria under the Disability Act to receive treatment in these programs.90
  3. 3.107 The Secretary to the Department of Human Services has custody of and responsibility for people detained under a supervision order in a residential treatment facility or residential institution.91 Of the 26 people on supervision orders as at end of June 2012, two were on custodial supervision orders accommodated at the Long Term Rehabilitation Program.92 The Forensic Leave Panel also reported that in the calendar year of 2011, there were two forensic residents within the disability stream detained under a custodial supervision order.93
  4. 3.108 The Secretary to the Department of Human Services also has responsibility for supervising people with an intellectual disability or cognitive impairment subject to a non-custodial supervision order. Case management is delivered across the state by the Department of Human Services. As at end of June 2012, there 24 people on a non-custodial supervision order under the CMIA receiving disability services from the Department of Human Services.94
  5. 3.109 The conditions, such as intellectual disability and acquired brain injury that underlie cognitive impairments are different in terms of their causes and their impact on levels of functioning. They are generally permanent in nature. Therefore, a person with an intellectual disability or cognitive impairment, may experience an increase in functioning, but will not ‘recover’ from that condition in the same way as a person with a mental illness.

How long does the CMIA supervision process last?

  1. 3.110 The supervision process can be very onerous and last for a significant period. It involves continual assessment and review of the person’s progress under the order.
  2. 3.111 The length of time that people are ultimately detained can vary. Some research conducted on this in 2006 showed that under the CMIA, detention has ranged from three months to 36 years (with some people continuing in detention). The average length of detention was just over eight years and the median length of detention was almost four years.
  3. 3.112 Once a person has moved from a custodial supervision order with increasing leave to a non-custodial supervision order, they may eventually be released from the order and no longer be subject to supervision. Some people will be detained or under supervision for the rest of their lives. The court considers a range of factors in making this decision including the nature of their mental condition, their ability to recover and progress through the system, the extent to which they pose a risk to themselves or other people in the community and reports from victims in the case and the person’s family members.


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