8. Supervision: review, leave and management of people subject to supervision

Introduction

  1. 8.1 The terms of reference ask the Commission to consider whether changes should be made to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA) provisions governing supervision and review, including the frequency, form and conduct of reviews and the arrangements for consideration and representation of the various interests involved, including the interests of the community.1
  2. 8.2 Chapter 7 discusses the orders available to the Supreme Court and County Court following a qualified finding of guilt or a verdict of not guilty because of mental impairment.
  3. 8.3 This chapter outlines the legislative framework governing the process that follows the making of those orders. In particular, this chapter examines the CMIA provisions on the types of review, frequency of reviews, variation and revocation of supervision orders, leave and the management of people subject to supervision orders. The Commission raises and discusses a number of legal and practical issues relating to these provisions.
  4. 8.4 Chapter 9 discusses a number of broad, systemic issues that affect the CMIA supervision regime as a whole.

The law prior to the CMIA—detention at the Governor’s pleasure

Reviewing Governor’s pleasure orders

  1. 8.5 Under the Governor’s pleasure system, people found unfit to plead or not guilty because of insanity were held in strict custody until the Governor’s pleasure was known. People subject to Governor’s pleasure orders with a mental illness were generally referred to a psychiatric inpatient service as a ‘security patient’. People subject to Governor’s pleasure orders with an intellectual disability were referred to a residential institution as a ‘security resident’.
  2. 8.6 The Adult Parole Board reviewed all security patients and residents under Governor’s pleasure orders on an annual basis to determine whether the person was suitable for release. The Adult Parole Board would make a recommendation on whether to release the person subject to the Governor’s pleasure order or continue to detain that person until the next review. Recommendations were based on reports from the professional staff responsible for the treatment and management of the person. People subject to Governor’s pleasure orders had no right to appear before the Adult Parole Board, nor did they have a right to appeal a decision of the Adult Parole Board.2
  3. 8.7 If the Adult Parole Board made an initial recommendation for release, it forwarded this recommendation to the Attorney-General, who then had to decide whether to agree with the recommendation. If the Attorney-General agreed with the recommendation, the Attorney-General referred the matter to Cabinet for discussion. If Cabinet approved the recommendation at that stage, the Premier was to recommend the revocation of the order to the Governor, who then signed a document revoking the order. The Adult Parole Board continued to supervise the person for five years, with or without conditions. Following this five-year period, the process was repeated and if successful, resulted in the unconditional revocation of the Governor’s pleasure order.

Leave under the Governor’s pleasure system

  1. 8.8 Security patients and security residents could be granted a leave of absence under the Mental Health Act 1986 (Vic) or the Intellectually Disabled Persons’ Services Act 1986 (Vic). Grants of leave allowed the person subject to the Governor’s pleasure order to be absent from the psychiatric inpatient service or residential institution for a duration of time, subject to any conditions. The legislation generally did not specify the nature and duration of leave.
  2. 8.9 The Chief Psychiatrist, in consultation with the Chief Psychiatrist’s advisory committee (that included representatives from Victoria Police, Victims of Crimes Assistance League, Forensic Health Service, the Adult Parole Board, the Correctional Services Division and the Office of Public Advocate) generally made leave decisions for security patients. Security patients had no right to appear before the Chief Psychiatrist’s advisory committee and the chief psychiatrist generally did not attend.3
  3. 8.10 The Mental Health Act required the Chief Psychiatrist to be satisfied on the evidence available that the safety of members of the public would not be seriously endangered as a result of the security patient’s leave of absence. The Mental Health Act also required that the Chief Psychiatrist consult the Director-General of Corrections. Patients whose leave applications were unsuccessful could seek review of the decision by the Mental Health Review Board. However, it was unusual for the Mental Health Review Board to overturn the Chief Psychiatrist’s decision.4
  4. 8.11 The Minister for Health and Community Services’s delegate made leave decisions for security residents under the Intellectually Disabled Person’s Services Act on the recommendation of the Director-General of Corrections or the Intellectual Disability Review Panel. The Minister’s decision was not reviewable.5 Leave decisions for security residents were also based on whether the safety of members of the public would be seriously endangered as a result of the security resident’s leave of absence.

Supervision under the CMIA

  1. 8.12 As discussed in Chapter 7, under the CMIA, following a finding under the CMIA, the court can unconditionally discharge the person or declare the person liable to supervision and make an order for a custodial supervision order or non-custodial supervision order.

Responsibility for supervision and treatment

  1. 8.13 A person with a mental illness subject to a supervision order is supervised by an ‘approved mental health service’ under the Department of Health. In all but exceptional circumstances, the Victorian Institute of Forensic Mental Health (Forensicare) is the ‘approved mental health service’ that supervises people with a mental illness. For a person with a mental illness, different arrangements apply depending on whether the person is on a custodial supervision order or a non-custodial supervision order:
  • A person subject to a custodial supervision order (‘forensic patient’) is detained and supervised at the Thomas Embling Hospital, Forensicare’s secure hospital. Forensicare will nominate an authorised psychiatrist at Forensicare to manage the forensic patient and their treatment.
  • People subject to non-custodial supervision orders or forensic patients who are on extended leave are supervised in the community by Forensicare through its Community Forensic Mental Health Service. Forensicare will nominate an authorised psychiatrist from Forensicare or a local approved mental health service to manage and treat the person, sometimes in collaboration with a private psychiatrist.
  1. 8.14 A person with an intellectual disability or cognitive impairment subject to a supervision order is both supervised by and receives treatment from agencies in the Department of Human Services. The main agency that provides forensic disability services to people on supervision orders is the Disability Services Division in the Department of Human Services. Different arrangements apply depending on whether the person is subject to a custodial supervision order or a non-custodial supervision order.
  • Within Disability Services, the Disability Forensic Assessment and Treatment Services manage and provide treatment to a person subject to a custodial supervision order (‘forensic resident’). Forensic residents can be detained in either a residential treatment facility or a residential institution.
  • A person subject to a non-custodial supervision order is managed and receives treatment in the community by Disability Client Services in the Department of Human Services.

Review and leave

  1. 8.15 The CMIA introduced a new system for the review, leave arrangements and management of people subject to supervision orders.
  2. 8.16 The CMIA removed the involvement of the Adult Parole Board and the executive in the review process by shifting responsibility for these decisions to the judiciary (the Supreme Court or County Court). Chapter 2 discusses the involvement of the executive and the Adult Parole Board.
  3. 8.17 In terms of the review of supervision orders, the CMIA also provided for:
  • a new process for the variation and revocation of supervision orders, including processes for the review of supervision orders, and clarified the criteria on which the review should be based
  • a ‘comprehensive system of reports’ in relation to people subject to supervision orders, to ensure that they have regular reviews and are not lost in the system6
  • a major review by a court into each person subject to a supervision order to consider whether to release the person or reduce the degree of supervision to which the person is subject following the expiry of the nominal term.7
  1. 8.18 The CMIA established new procedures for granting leave to people subject to custodial supervision orders.8 The CMIA established an independent body—the Forensic Leave Panel—to be the main leave decision-making body. The Forensic Leave Panel was established to increase the transparency and accessibility of the leave process that the Governor’s pleasure system lacked.9 The CMIA introduced four different types of leave with more specificity on their nature and durations. The Forensic Leave Panel makes the decisions on the majority of leave applications.
  2. 8.19 In both the review and leave process, the CMIA introduced the right of people subject to supervision orders to appear at hearings and more substantial appeal rights. It also provided for the greater involvement of family members of people subject to supervision orders and victims, including provisions for notification to and consultation with family members and victims where the court is considering releasing the person or substantially reducing the degree of supervision to which the person is subject.

Pathway for gradual reintegration

  1. 8.20 The CMIA system of supervision has been characterised as ‘gradualist’10 or ‘staggered’,11 in recognition ‘that the treatment and reintegration of people with a mental disorder is most appropriately considered on a gradual basis’.12 The CMIA therefore envisages a pathway for release for a person subject to a supervision order, where a person on a custodial supervision order receives increasing leave entitlements (from on-ground leave, both supervised then unsupervised, to off-ground leave, both supervised then unsupervised, and then extended leave), eventually ‘graduates’ to a non-custodial supervision order and is finally released following revocation of the non-custodial supervision order.13 A key question for the Commission’s review of the CMIA is whether this staggered pathway for release is operating well in practice for all people subject to supervision orders (for both people with a mental illness and people with an intellectual disability or cognitive impairment (see Chapter 3)).

Review, variation and revocation of orders

  1. 8.21 Once a court makes a supervision order, the court can vary or revoke it. The process of varying and reviewing orders facilitates the transition of people subject to supervision orders through the CMIA’s staggered system of release.
  2. 8.22 A court can vary or revoke a supervision order using three procedures under the CMIA :
  • through an application to vary or revoke the supervision order
  • in the course of a review or further review
  • at a major review.
  1. 8.23 A number of parties have the right to make an application to the court that made the original supervision order to vary a custodial supervision order or to vary or revoke a non-custodial supervision order. The person subject to the supervision order, the person having the ‘custody, care, control or supervision’ of that person, the Director of Public Prosecutions or the Attorney-General may make an application.14 If the court refuses an application to vary a custodial supervision order, a fresh application is barred for another three years or a lesser period if the court directs.15
  2. 8.24 When a person is declared liable to supervision and the court makes a supervision order in relation to that person, the court may also direct a ‘review’ of the matter at the end of a certain period.16 Unless the court revokes the order, the court may also direct a further review of the matter following an application to vary or revoke an order or a review of an order.17 The court may order a further review any number of times.

Issues in relation to review, variation and revocation of orders

  1. 8.25 In the following section, the Commission discusses each of these procedures and asks questions about how these procedures operate. In doing so, the Commission considers the following issues:
  • custodial supervision orders: applications to vary and reviews
  • non-custodial supervision orders: applications to vary or revoke and reviews
  • major reviews
  • frequency of reviews.
  1. 8.26 This chapter will not discuss the matters the court considers in varying and revoking orders and the representation of various interests in the process. Chapter 9 covers these topics.

Custodial supervision orders: applications to vary and reviews

  1. 8.27 When a person subject to a custodial supervision order applies to vary the order, or has a review or further review of their order, the court can decide that the order will stay in place either by confirming the order or by varying the place of custody. Alternatively, the court can decide to change the custodial supervision order by varying the order to a non-custodial supervision order.18
  2. 8.28 The court must not vary a custodial supervision order to a non-custodial supervision order during the nominal term unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the variation.19 The court must also have regard to a number of matters under section 40 of the CMIA, such as the nature of the person’s mental impairment. These matters will be discussed in more detail in Chapter 9.
  3. 8.29 Where the person subject to the supervision order is a forensic patient or forensic resident, courts must not vary a custodial supervision order to a non-custodial supervision order unless the person has completed a period of at least 12 months extended leave.20 The court must consider whether the forensic patient or forensic resident has complied with any conditions of their extended leave.21
  4. 8.30 The person subject to the supervision order may appeal any decision to confirm or vary a custodial supervision order to the Court of Appeal.22

Non-custodial supervision orders: applications to vary or revoke and reviews

  1. 8.31 When a person subject to a non-custodial supervision order applies to vary or revoke that order, or has a review or further review of the non-custodial supervision order, the court can decide not to change the order either by confirming the order or by varying the conditions of the order. Alternatively, the court may change the order. The court can vary the order to a custodial supervision order, resulting in the detention of the person, or it can revoke the non-custodial supervision order and release the person.23 The person may appeal a decision confirming or varying a non-custodial supervision order to the Court of Appeal.24
  2. 8.32 In deciding whether to vary or revoke a supervision order, the court must have regard to a number of matters, such as the nature of the person’s mental impairment and the resources available for the treatment and support of the person in the community. These matters will be discussed in more detail in Chapter 9.

Major reviews

  1. 8.33 The third way a court can vary or revoke a supervision order is through a major review. The court that originally made the supervision order must conduct a ‘major review’ of the order at least three months before the end of the nominal term of the order, and at intervals not exceeding five years after that for the duration of the order.25 Chapter 7 discusses nominal terms in more detail.
  2. 8.34 The purpose of a major review is to determine whether to release the person subject to the supervision order.26
  3. 8.35 In a major review of a custodial supervision order, there is a presumption in favour of varying the order to a non-custodial supervision order. The court must vary the order to a non-custodial supervision order, unless satisfied that the safety of the person subject to the order or members of the public will be seriously endangered because of the variation of the order.27 Where the court is satisfied that the safety of the person subject to the order or members of the public will be seriously endangered because of the downgrading of the order, the court must confirm the order or vary the place of custody.28
  4. 8.36 In a major review of a non-custodial supervision order, the court may confirm the order, vary the conditions of the order or revoke the order.29 Unlike the major review of a custodial supervision order, in a major review of a non-custodial supervision order, the person subject to the supervision order does not have the advantage of a presumption that the court will downgrade their order and release them. In that sense, the major review of a non-custodial supervision order is not very different to a usual review of a supervision order.
  5. 8.37 A person subject to a supervision order can appeal a decision to confirm or vary a supervision order at a major review to the Court of Appeal.30

Question

  1. 70Are changes required to the provisions for reviewing, varying and revoking supervision orders to make them more just, effective and consistent with the principles underlying the CMIA? If so, what changes are required?

 

Frequency of reviews

  1. 8.38 The CMIA provides judges with the flexibility to decide how often to review, or further review, a person’s supervision order.31 The CMIA only specifies the timing of the major review (being at least three months before the end of the nominal term of the order and at intervals not exceeding five years after that for the duration of the order).32 The Commission’s preliminary research indicates that judges take a range of approaches in fixing the frequency of reviews. Some judges may conduct annual reviews, while others set shorter or longer periods.
  2. 8.39 The lack of specificity on the frequency of reviews in the CMIA raises the question of whether the CMIA should be more prescriptive in this area. Some jurisdictions have more specific provisions on the frequency of reviews. In New South Wales, for example, once a person is subject to a supervision order, the Mental Health Review Tribunal (the body that reviews supervision orders in New South Wales) must conduct an initial review of the order as soon as practicable after the making of the order.33 The Mental Health Review Tribunal must generally conduct subsequent reviews every six months.34 In Queensland, a review of each forensic patient’s mental condition must occur at least every six months.35
  3. 8.40 Having flexible provisions on the frequency of reviews does, however, allow judges to set the timing of reviews to best suit the individual case. More frequent reviews are not necessarily preferable. Review hearings can be traumatic for the person subject to the supervision order, their family members and victims. Reviews can also be counter-therapeutic, requiring the person subject to the supervision order to relive their offending and have their behaviour scrutinised.36
  4. 8.41 Further, reviews require substantial resources, including:
  • court time
  • legal representation for each party involved
  • time to provide information to the court on the progress of the person subject to the supervision order, including the time it takes to prepare reports and give evidence in court.
  1. 8.42 In 2011–12, five forensic patients on a custodial supervision order returned to court for a review or major review. In four of the five cases, the court confirmed the custodial supervision order. In the other case, the court granted the person extended leave. In the same year, the court varied custodial supervision orders for four people on extended leave to a non-custodial supervision order.37
  2. 8.43 In 2011–12, there were 30 reviews or major reviews of non-custodial supervision orders. The court revoked the non-custodial supervision orders of 10 people. This is five more than the previous year.
  3. 8.44 One option would be to preserve the flexibility that the CMIA gives to judges, while also ensuring that people subject to supervision orders are not ‘lost in the system’. In the Commission’s reference on guardianship, for example, the Commission recommended a legislatively required regular, automatic review of each custodial supervision order under the CMIA at an interval of no longer than every two years. To the Commission’s knowledge, this recommendation has not yet been adopted.

Questions

  1. 71In your experience as either a person subject to a supervision order, a family member of a person subject to a supervision order or a victim in a CMIA matter, how has the frequency of reviews affected you?

  2. 72What effect does the current frequency of reviews have on court resources and the resources of other parties involved?

  3. 73Does the CMIA strike the right balance between allowing for flexibility in the frequency of reviews and ensuring that people subject to supervision orders are reviewed whenever appropriate?

 

Leave of absence under supervision orders

  1. 8.45 Forensic patients and forensic residents are able to apply for a leave of absence from their supervision order. Leave arrangements enable forensic patients and forensic residents to be absent from their place of custody for a number of reasons, including:
  • for access to necessary services that cannot be provided while in custody (such as medical services)
  • for court attendance
  • for humanitarian grounds (for example, attending a family member’s funeral)
  • in anticipation of discharge (for example, to find accommodation or seek employment)
  • as part of a rehabilitation plan to encourage people subject to supervision orders to develop the social skills necessary for rehabilitation and social reintegration.38
  1. 8.46 The purpose of leave is to allow a person on a custodial supervision order to gradually reintegrate into the community. A graduated approach to granting leave aims to balance the person’s rehabilitative needs with the safety of the community. A person’s progress through the various types of leave will therefore vary from individual to individual and will depend on the nature of the person’s illness or condition, their response to treatment or rehabilitation and the person’s risk profile.39 It is a:

stepwise process, contingent on the successful negotiation of a graduated leave process. … If a patient demonstrates a sustained ability to cope with a return to life outside of an institution, then the level of uncertainty in assessing their risk is correspondingly lowered.40

  1. 8.47 The Forensic Leave Panel’s annual report describes this graduated approach to leave as follows:

Initially a patient or resident is granted a small amount of leave, which is escorted by two or three staff members. This could include leave to attend medical appointments, or may allow a patient or resident to attend a nearby facility (such as a park or café) for one hour a week. This slow approach to leave allows for gradual reintregration into the community, and also provides staff with a valuable opportunity to monitor how the person copes and adapts in a community setting. If a patient or resident can successfully participate in leave over a sustained period, the [Forensic Leave Panel] may decrease the number of escorts and increase the number of approved locations and purposes, as well as the duration, of further leaves. This process allows a patient or resident to increase their participation in a wide variety of activities that form part of everyday living in order to prepare them for release back into the community.41

  1. 8.48 The following section explains the types of leave available to forensic patients and forensic residents, the process of applying for leave, the documentation in support of a leave application, the criteria for granting leave and the leave conditions that the court may impose. The section will also outline the process for suspending and revoking leave and appealing leave decisions. It will explain the functions and processes of the Forensic Leave Panel and the administrative arrangements for the panel such as the appointment of members. In doing so, it focuses on the process issues regarding leave.
  2. 8.49 Chapter 9 discusses the criteria for granting leave and the representation of various interests in the leave process in more detail.

Types of leave

  1. 8.50 The CMIA is unique among Australian jurisdictions because it specifies the type of leave that is available based on the location and duration of the leave, and designates different decision-making bodies for the different types of leave.
  2. 8.51 Other Australian jurisdictions tend to categorise leave based on the purpose of the leave. For example in Queensland, a person may request a temporary leave of absence on medical grounds, to appear before a court or tribunal or for any other reasons on compassionate grounds.42 In New South Wales leave is available for emergency or special circumstances.43 In Tasmania a person can apply for leave for personal reasons, for rehabilitation or reintegration into the community or for ‘any other purpose’.44
  3. 8.52 The types of leave available under the CMIA are:
  • special leave of absence
  • on-ground leave
  • limited off-ground leave
  • extended leave.45
  1. 8.53 Table 5 shows the types of leave available under the CMIA.

Table 5: Types of leave available under the CMIA46

  1. Type of leave

    Conditions

    Who can apply

    Who can grant

    Who can suspend

    Special leave

    Not more than seven days in the case of absence for medical treatment or not more than 24 hours in any other case

    Forensic patient

    Forensic resident

    Person on behalf of the forensic patient or resident

    Authorised psychiatrist (for forensic patients) or the Secretary to the Department of Human Services (for forensic residents)

    Chief Psychiatrist (for forensic patients) or Secretary to the Department of Human Services (for forensic residents)

    On-ground leave

    Absence from the place of custody but within the surrounds of the mental health service or residential treatment facility or institution

    Forensic patient

    Forensic resident

    Authorised psychiatrist (for forensic patients) or the Secretary to the Department of Human Services (for forensic residents)

    Forensic Leave Panel

    Chief Psychiatrist (for forensic patients) or Secretary to the Department of Human Services (for forensic residents)

    Limited off-ground leave

    Between 6am and 9pm and outside those hours on a maximum of three days in any seven day period

    Forensic patient

    Forensic resident

    Authorised psychiatrist (for forensic patients) or the Secretary to the Department of Human Services (for forensic residents)

    Forensic Leave Panel

    Chief Psychiatrist (for forensic patients) or Secretary to the Department of Human Services (for forensic residents)

    Extended leave

    Not more than 12 months but extensions may be granted

    Forensic patient

    Forensic resident

    Authorised psychiatrist (for forensic patients) or the Secretary to the Department of Human Services (for forensic residents)

    Court which originally made the supervision order

    Chief Psychiatrist (for forensic patients) or Secretary to the Department of Human Services (for forensic residents)

Special leave

  1. 8.54 Special leave allows a forensic patient or forensic resident on a custodial supervision order to leave their place of detention and receive services for:
  • seven days for the purpose of receiving medical treatment, or
  • 24 hours for non-medical treatment purposes.47
  1. 8.55 The authorised psychiatrist (for forensic patients) or the Secretary to the Department of Human Services (for forensic residents) make decisions on special leave.48

Applying for special leave

  1. 8.56 A forensic patient or forensic resident, or a person on their behalf, may apply for special leave by specifying the special circumstances for which the person requires leave.49
  2. 8.57 The authorised psychiatrist or the Secretary to the Department of Human Services must grant the application for special leave if they are satisfied on the evidence that:
  • there are special circumstances, and
  • the safety of members of the public will not be seriously endangered.50
  1. 8.58 The authorised psychiatrist or Secretary to the Department of Human Services may approve special leave subject to specified conditions.51

Appealing special leave decisions

  1. 8.59 A forensic patient or forensic resident may appeal to the Forensic Leave Panel against a decision not to grant special leave.52 The Forensic Leave Panel may either confirm the decision of the authorised psychiatrist or the Secretary to the Department of Human Services to refuse to grant special leave or allow the person to take special leave.53 There were no appeals of special leave decisions in Victoria in 2011.54

Suspension of special leave

  1. 8.60 The Chief Psychiatrist55 (for forensic patients) or the Secretary to the Department of Human Services (for forensic residents) may suspend leave if they are satisfied on the evidence available that the safety of the person on leave or members of the public will be seriously endangered if they do not suspend leave, or part of the leave.56 The Chief Psychiatrist or Secretary to the Department of Human Services must lift the leave suspension where there is no longer any reason for suspending the person’s leave.57

On-ground leave and limited off-ground leave

  1. 8.61 The Forensic Leave Panel makes decisions about on-ground and limited off-ground leave. On-ground leave allows a forensic patient or forensic resident to leave their place of detention and receive services, but requires them to remain ‘within the surrounds’ of the place of detention, which the Governor in Council declares.58
  2. 8.62 Forensic patients at Thomas Embling Hospital do not require on-ground leave because the hospital has sufficient grounds within the secure perimeter. Consequently, the Forensic Leave Panel does not hear any applications from forensic patients for on-ground leave.59 Forensic residents, however, have made use of on-ground leave provisions under the CMIA.60
  3. 8.63 Limited off-ground leave allows a forensic patient or forensic resident, for a maximum of six months, to leave their place of detention:
  • between the hours of 6am and 9pm, and
  • outside those hours on a maximum of three days in any seven day period.61
  1. 8.64 The times specified for limited off-ground leave ‘allow more flexibility in allowing clinically appropriate rehabilitative activities’.62

Applying for or varying on-ground or limited off-ground leave

  1. 8.65 The forensic patient or forensic resident or the authorised psychiatrist (for forensic patients) or the Secretary to the Department of Human Services (for forensic residents) can make an application for on-ground or limited off-ground leave, or an application to vary these types of leave.63
  2. 8.66 In making leave decisions, the Forensic Leave Panel must primarily have regard to the forensic patient or forensic resident’s current mental condition or pattern of behaviour and to their clinical history and social circumstances.64 The Forensic Leave Panel must also have regard to the applicant profile and the leave plan or statement submitted with the leave application.65

Applicant profile

  1. 8.67 An applicant profile must be provided with the leave application.
  2. 8.68 The applicant profile contains a range of information to assist the Forensic Leave Panel to make a decision about granting or varying leave, including the relationship between the forensic patient or forensic resident’s impairment, condition or disability and the offending conduct, their current mental state or pattern of behaviour and the offence that led to the making of the supervision order.66
  3. 8.69 The Clinical Director of Forensicare or the authorised psychiatrist for the approved mental health service provides the applicant profile for forensic patients. For forensic residents, the Secretary to the Department of Human Services provides the applicant profile.67

Leave plan or statement

  1. 8.70 The Clinical Director of Forensicare or the authorised psychiatrist for the approved mental health service (for forensic patients) or the Secretary to the Department of Human Services (for forensic residents) must also provide a leave plan or statement.68 A leave plan or statement does not have to be provided by them if they consider that the application should be refused.
  2. 8.71 The CMIA started to require a leave plan with all applications to the Forensic Leave Panel following the Vincent Review ‘to ensure that the forensic leave panel is properly informed before granting leave’.69
  3. 8.72 The leave plan or statement should also include information on the purpose of the leave and how it will contribute to the forensic patient or forensic resident’s rehabilitation, any proposed conditions of the leave and any other information the Clinical Director or Secretary to the Department of Human Services consider relevant or that the Forensic Leave Panel has requested.70 This provision ‘allows the person’s treating team to recommend any leave conditions and/or recommend against leave being granted’.71
  4. 8.73 The Forensic Leave Panel’s Annual Report lists the most common types of leave granted, including leave to:
  • attend medical, legal, dental or allied health appointments
  • undertake activities of daily living (for example, personal shopping and banking)
  • build or maintain relationships with family or friends in the community
  • participate in therapeutic or rehabilitation groups, activities and programs
  • attend educational and vocational activities, groups and courses
  • participate in or seek voluntary or paid employment.72
  1. 8.74 The Clinical Director or Secretary to the Department of Human Services only provides a leave plan if they consider that the application should be granted.73 If they consider that an application should be refused, the Clinical Director or Secretary to the Department of Human Services must provide a written statement to the Forensic Leave Panel outlining the reasons the application should not be granted, and any other information they consider relevant or that the Forensic Leave Panel has requested.74

Criteria for granting or varying on-ground or limited off-ground leave

  1. 8.75 The Forensic Leave Panel may grant an application for on-ground or limited off-ground leave if it is satisfied on the evidence that:
  • the proposed leave will contribute to the person’s rehabilitation, and
  • the safety of the person or members of the public will not be seriously endangered as a result of the person’s leave.75
  1. 8.76 The Forensic Leave Panel can place any conditions on leave that it considers appropriate, including any escorts that may be required, where the forensic patient or forensic resident may go while on leave, who they may meet with, their travel arrangements or any requirement to undertake drug or alcohol testing following return from leave.76
  2. 8.77 The same criteria outlined at [8.75] apply to an application to vary a forensic patient or forensic resident’s on-ground or limited off-ground leave. However, the Forensic Leave Panel must also be satisfied that there has been a significant alteration in the person’s circumstances since it last granted or varied leave.77

Suspension of on-ground leave or limited off-ground leave

  1. 8.78 The Chief Psychiatrist (for forensic patients) or the Secretary to the Department of Human Services (for forensic residents) may suspend on-ground or limited off-ground leave if they are satisfied on the evidence available that the safety of the forensic patient or forensic resident on leave or members of the public will be seriously endangered if they do not suspend leave, or part of the leave.78 The Chief Psychiatrist or Secretary to the Department of Human Services must lift the leave suspension where there is no longer a reason for suspending a forensic patient or forensic resident’s leave.79
  2. 8.79 In 2011, nine forensic patients had their leave partially or wholly suspended. No forensic residents had their leave suspended during the same period.80

Extended leave

  1. 8.80 Extended leave allows a forensic patient or a forensic resident to leave the place where they are being detained for a period of time not exceeding 12 months.81
  2. 8.81 In 2011–12, six patients moved from Thomas Embling Hospital to live full time in the community on extended leave.82

Applying for extended leave

  1. 8.82 A forensic patient or forensic resident may apply for extended leave to the court that made their original custodial supervision order.83 The forensic patient or forensic resident can apply for extended leave themselves or the authorised psychiatrist (for forensic patients) or the Secretary to the Department of Human Services (for forensic residents) can apply on their behalf.84

Extended leave plan

  1. 8.83 The authorised psychiatrist (for a forensic patient) or the Secretary to the Department of Human Services (for a forensic resident) must prepare a leave plan and submit it to the court in support of an application for extended leave.85 The court may grant extended leave if satisfied that the safety of the person applying for leave or the safety of members of the public will not be seriously endangered as a result of the person’s extended leave.86 The court must also consider a number of matters under section 40 of the CMIA, such as the nature of the person’s mental impairment and whether there are adequate resources available for the treatment and support of the person in the community. These matters will be considered in more detail in Chapter 9.

Suspending and revoking extended leave

  1. 8.84 The Chief Psychiatrist (for forensic patients) or the Secretary to the Department of Human Services (for forensic residents) can suspend the extended leave of a person on a custodial supervision order.87
  2. 8.85 Suspension of leave can only occur in situations where the safety of the forensic patient or forensic resident on leave, or members of the general public will be seriously endangered if the Chief Psychiatrist or the Secretary to the Department of Human Services do not suspend leave.88
  3. 8.86 Once a forensic patient or forensic resident’s leave has been suspended, the Chief Psychiatrist or the Secretary to the Department of Human Services must either make an application to the court that granted their leave to revoke the leave or lift the suspension.89 The Chief Psychiatrist or the Secretary to the Department of Human Services must also lift the suspension where they are satisfied that the reason for suspending the leave no longer exists.90
  4. 8.87 In 2011–12, one forensic patient had their extended leave revoked and returned to the Thomas Embling Hospital.91

Appealing a grant of extended leave or decision to revoke or suspend extended leave

  1. 8.88 A forensic patient or forensic resident may appeal to the Court of Appeal against a court’s refusal to grant extended leave.92 A person may appeal to the Court of Appeal against a decision to revoke their extended leave.93

Administering leave

  1. 8.89 Certain types of leave for forensic patients and forensic residents require staff supervision. The Commission’s preliminary research suggested that there may be circumstances where forensic patients have sought to make use of the leave they had been granted, but may have been unable to do so for operational reasons. Operational issues may arise because of resource constraints and the availability of staff.

Questions

  1. 74Are changes required to the leave processes to make them more just, efficient and consistent with the principles underlying the CMIA? If so, what changes are required?

  2. 75In your experience as either a person subject to a supervision order, a family member of a person subject to a supervision order or a victim in a CMIA matter, how have leave processes affected you?

 

Leave decision-making bodies

  1. 8.90 The CMIA uses a range of decision-making bodies to make determinations about leave including the courts, the Forensic Leave Panel, authorised psychiatrists and the Secretary to the Department of Human Services. In addition, Forensicare has an Internal Leave Review Committee that considers the leave applications and endorses leave plans. In this section, the Commission discusses the operation of the Forensic Leave Panel and the Internal Leave Review Committee. Chapter 9 discusses the role of the court in granting extended leave.
  2. 8.91 Like Victoria, many jurisdictions utilise an independent tribunal or board as a leave decision-making body, for example the Forensic Tribunal in Tasmania, the Mental Health Tribunal in New South Wales, the Mentally Impaired Accused Review Board in Western Australia and the Mental Health Board in Queensland.

Supreme Court and County Court

  1. 8.92 The Supreme Court and County Court make decisions regarding extended leave. The court that made the original supervision order will hear and determine applications for extended leave under a supervision order.

Operation of the Forensic Leave Panel

  1. 8.93 The CMIA established the Forensic Leave Panel to hear and determine applications for on-ground and limited off-ground leave and appeals of special leave decisions.94 The Forensic Leave Panel’s role is ‘integral to the rehabilitation of patients and residents and facilitates their reintegration into the community’.95
  2. 8.94 The Forensic Leave Panel’s membership consists of one or more judges of the Supreme Court, one or more judges of the County Court, the Chief Psychiatrist and any members necessary from time to time for the proper functioning of the Forensic Leave Panel.96 For the purpose of a hearing, the panel consists of a judicial member, a member appointed to the panel to represent the view and opinions of members of the community, and the person who is primarily responsible for the treatment and care of the applicant who is:
  • for forensic patients, the Chief Psychiatrist and a medical practitioner with experience in forensic psychiatry
  • for forensic residents, a registered psychologist with forensic experience.97
  1. 8.95 The judicial member of the Forensic Leave Panel is the chairperson for the hearing. The chairperson’s role includes deciding questions of law, arranging the business and procedure of the Forensic Leave Panel in consultation with other members and determining the sittings of the Forensic Leave Panel.98
  2. 8.96 The Minister for Mental Health nominates the members of the Forensic Leave Panel who are then appointed by the Governor in Council. Judicial members serve a term of five years and other members serve a period of up to four years.99 Members of the Forensic Leave Panel are eligible for reappointment.100
  3. 8.97 In hearing any matter, the Forensic Leave Panel must act according to ‘equity and good conscience’ without regard to technicalities and legal forms, is bound by the rules of natural justice and is not required to conduct any proceedings in a formal manner.101
  4. 8.98 The following comment made by the Forensic Leave Panel in its 2010 annual report provides an indication of the difficult task of the Forensic Leave Panel and its approach in conducting leave hearings:

The panel recognises that attending a hearing can be difficult and stressful for some forensic patients and residents. The panel seeks to create an environment where patients and residents feel able to express their views and wishes freely. The panel is also sensitive to the needs of treating staff, who must balance the requirement to provide candid evidence to the panel with the need to maintain a healthy therapeutic relationship with the patient or resident.102

  1. 8.99 The Forensic Leave Panel must provide reasons for all its decisions.103 The panel may give reasons orally, however a person applying for leave can request the reasons in writing.104 When the Forensic Leave Panel does not approve a leave application, it must tell the person who applied for the leave that they have the right to request written reasons for the decision.105 Only one patient requested a written statement of reasons from the Forensic Leave Panel in 2011.106
  2. 8.100 As part of this review, the Commission is examining the provisions in the CMIA on the operation of the Forensic Leave Panel and how they function in practice. Currently, hearings require the presence of three or four panel members to make decisions on leave, which in some cases may be relatively straightforward. The judicial members of the panel must be current judges (as opposed to retired judges). Currently, there are eight judges on the Forensic Leave Panel.107 Further, the maximum period for which the Forensic Leave Panel can grant on-ground or limited off-ground leave is six months.108 If the Forensic Leave Panel does not sit or cancels a hearing, there is no continuing authority for a forensic patient or forensic resident’s leave to continue, which can affect their rehabilitation prospects.

Questions

  1. 76Should the CMIA provide the Forensic Leave Panel with more flexibility in its operation?

  2. 77 Is the composition of the Forensic Leave Panel appropriate?

 

Operation of the Internal Leave Review Committee

  1. 8.101 The Vincent Review was commissioned in 2001 to consider leave arrangements for patients at the Thomas Embling Hospital in response to community safety concerns following a patient absconding from the hospital. The Vincent Review recommended establishing a committee to comment on leave applications, convened by Forensicare’s Clinical Director and comprising the Chief Psychiatrist, senior clinical staff and heads of treating teams. The purpose of such a committee was to:
  • consider leave applications (other than applications for special leave)
  • consider the associated treatment plans
  • ensure relevant clinical issues are considered
  • formally endorse the plans.
  1. 8.102 Under the proposal, the Clinical Director was then to pass on the advice of the committee to the formal leave decision-making body.109
  2. 8.103 Forensicare implemented the Vincent Review’s recommendation by establishing the Internal Leave Review Committee. Unlike the Forensic Leave Panel, the Internal Leave Review Committee does not have a legislative basis. As an internal body, the Internal Leave Review Committee’s policy, procedures and decision making are not governed by legislation, even though its recommendations would be influential in the Forensic Leave Panel or court’s decision making.
  3. 8.104 There are obvious benefits of an Internal Leave Review Committee. It can provide useful assistance to the Forensic Leave Panel or the court in considering applications for leave and thus an extra degree of oversight for leave applications. In its 2010 annual report, the Forensic Leave Panel made the following observation:

Occasionally, the leave review committee (for forensic patients) does not support an application that the treating team supports. In that case, the hearing offers an additional opportunity for the treating team to clarify any issues surrounding the application.110

  1. 8.105 Further, the Internal Leave Review Committee can ensure consistency in the approach taken by Forensicare to preparing information (such as applicant profiles and leave plans or statements). The role of the Internal Leave Review Committee is well documented,111 but there is less publicly available information about how it functions in practice. This raises questions about how people who may be subject to the leave process perceive it to operate in terms of transparency and fairness.

Question

  1. 78Are changes required to the operation of the Internal Leave Committee? If so, what changes are required?

 

Monitoring people subject to supervision orders

  1. 8.106 The arrangements for the supervision, treatment and management of people subject to supervision orders are complex. While the CMIA has set out some of the arrangements, to a large degree they are contained in various policies and procedures of agencies in the Department of Health and the Department of Human Services that are responsible for managing and providing treatment to people subject to supervision orders.
  2. 8.107 In this section, the Commission describes the processes for monitoring people subject to supervision orders and seeks to identify how they operate in practice. In doing so, the Commission considers the potential issues in the following areas:
  • responsibility for people subject to supervision orders
  • breaches of supervision orders
  • people who abscond to Victoria from another state
  • interstate transfer orders.

Responsibility for people subject to supervision orders

  1. 8.108 As discussed at [8.13]–[8.14] a number of organisations have responsibility for supervising people subject to orders under the CMIA. The Department of Health has primary responsibility for forensic patients, whereas the Department of Human Services has primary responsibility for forensic residents.112
  2. 8.109 Forensicare or the Department of Human Services manage people subject to non-custodial supervision orders in the community, depending on the nature of the mental impairment.

Responsibility for people on non-custodial supervision orders

  1. 8.110 When a court makes a non-custodial supervision order, it will generally specify:
  • who manages the non-custodial supervision order (for example, the authorised psychiatrist of Forensicare)
  • the area mental health service that will treat the person.113
  1. 8.111 The person supervising the order monitors the treatment and management of the person but most of the time has no direct clinical responsibility for providing the treatment.114
  2. 8.112 In terms of departmental responsibility for people on non-custodial supervision orders, the Secretary to the Department of Human Services and the Secretary to the Department of Health must file a report with the court on the person subject to the non-custodial supervision order at intervals of not more than 12 months.115 The Secretary to the Department of Human Services and the Secretary to the Department of Health also have powers under the CMIA to address non-compliance with non-custodial supervision orders.116 The CMIA does not otherwise provide that these departments are responsible for people on non-custodial supervision orders.
  3. 8.113 In its preliminary research, the Commission identified that there can be complex arrangements for the supervision, management and treatment of people subject to supervision orders. As a result, there can be a lack of clarity around who is responsible for monitoring, reporting and returning people to court for hearings or for responding to breaches of an order. This situation could arise, for example, in the case of a person subject to a non-custodial supervision order in the community who is supervised by Forensicare’s Community Forensic Mental Health Service, managed by an approved mental health service and receiving treatment from a private psychiatrist or other medical practitioner.
  4. 8.114 While it is implicit that someone should be monitoring the person subject to the non-custodial supervision order at any given time, it is not always clear who is responsible for some of the requirements imposed by the legislation. Clarity around this is integral to ensure that a person subject to a supervision order does not become ‘lost in the system’.
  5. 8.115 The Victorian Parliament Law Reform Committee in its Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers recommended that the CMIA clarify departmental responsibility for supervision and monitoring custodial supervision orders and non-custodial supervision orders.117

Questions

  1. 79Is there sufficient clarity in the arrangements for monitoring people subject to non-custodial supervision orders?

  2. 80If no, what changes should be made to ensure that people on non-custodial supervision orders are adequately monitored?

 

Breaches of supervision orders

  1. 8.116 A person subject to a supervision order can breach it by:
  • failing to comply with a non-custodial supervision order, or
  • being absent without leave while on a custodial supervision order.
  1. 8.117 The following section will discuss the CMIA provisions on each of these breaches.

Emergency powers of apprehension

  1. 8.118 Where a person subject to a non-custodial supervision order becomes a serious risk to themselves or others, the CMIA provides that the person can be apprehended using an emergency power of apprehension.118 The person must:
  • have failed to comply with the non-custodial supervision order, and
  • be a serious danger to their own safety or public safety.119
  1. 8.119 People responsible for the supervision of the person subject to the supervision order (supervisors) use the emergency power when they need to apprehend the person subject to a supervision order as a matter of urgency and it would be inappropriate to wait for a court decision.120 Members of the police force, ambulance officers and other mental health service providers may also use the emergency power of apprehension.121

Arresting people subject to a supervision order who breach a supervision order by leaving Victoria

  1. 8.120 People on non-custodial supervision orders may travel out of Victoria if they have the permission of their supervisor.122 However, where a person on a non-custodial supervision order leaves Victoria without permission, they fail to comply with the supervision order and can be arrested.123 The supervisor, the Secretary to the Department of Health or the Secretary to the Department of Human Services may apply for a warrant to arrest the person subject to the non-custodial supervision order.124
  2. 8.121 The supervisor, the Secretary to the Department of Health or the Secretary to the Department of Human Services may also apply for a warrant of arrest if a person is absent without leave while on a custodial supervision order.125

Application to vary an order following non-compliance with a non-custodial supervision order

  1. 8.122 If it appears that a person subject to a non-custodial supervision order has failed to comply with it, the supervisor, the Secretary to the Department of Health or the Secretary to the Department of Human Services may apply to the court for a variation of the non-custodial supervision order. These parties may make an application to the court:
  • following an emergency apprehension126
  • after a person is arrested under a warrant127, or
  • if it otherwise appears that the person has not complied with the order.128
  1. 8.123 If an application is not made within 48 hours of the emergency apprehension or the person’s arrest, the person must be released.129
  2. 8.124 The court may order a warrant for the arrest of a person subject to a non-custodial supervision order if they fail to attend the hearing (in situations where the person is not already in detention).130
  3. 8.125 At the hearing, if the court is satisfied that the person on the non-custodial supervision order has failed to comply with conditions of the order, the court may confirm the order, vary the conditions of the order or vary the order to a custodial supervision order.131

Lack of clarity in dealing with non-compliance of non-custodial supervision orders

  1. 8.126 A person can fail to comply with a non-custodial supervision order for various reasons, for example, by missing appointments with the treating team, refusing to participate in programs or using illicit drugs (where this is in breach of a condition of the non-custodial supervision order).132
  2. 8.127 When Forensicare is supervising a person subject to a non-custodial supervision order and there is a concern that the person is breaching the conditions of their non-custodial supervision order, the area mental health service providing treatment to the person must contact the authorised psychiatrist of Forensicare immediately.133 Forensicare and the area mental health service will then both decide how to deal with the issue.134
  3. 8.128 In its preliminary research, the Commission identified a potential issue regarding whether there is sufficient guidance in dealing with the failure to comply with a non-custodial supervision order. In particular, the current provisions of the CMIA are not adequately clear on the extent of the non-compliance before action must be taken under the CMIA to apprehend the person subject to the supervision order. For example, in many cases the person subject to the non-custodial supervision order may maintain a stable mental state but may fail to comply with the non-custodial supervision order because of other behavioural issues, a substance use or a personality disorder. It is unclear in some of these cases whether the person’s behaviour warrants an apprehension under the CMIA. There is no requirement that the person or the community be in danger due to the person’s behaviour—the person subject to the supervision order need only breach a condition of the order by their behaviour.135

Questions

  1. 81Is there is a need for guidance on failures to comply with or breaches of supervision orders?

  2. 82If so, what is the best mechanism for providing more guidance on failures to comply with or breaches of supervision orders?

 

People who abscond to Victoria from another state

  1. 8.129 The Secretary to the Department of Human Services or the Secretary to the Department of Health may apply for a warrant to arrest a person where they are:
  • in Victoria and are absent without leave from a mental health service in another
    state, or
  • in breach of a non-custodial type order in another state that would allow them to be apprehended in that state.136
  1. 8.130 When the person is brought before the Magistrates’ Court, the court may make an ‘interim disposition order’ to:
  • grant the person bail
  • detain the person as if they were subject to a supervision order, or
  • remand the person in custody in a prison.137
  1. 8.131 An application must be made to the Supreme Court within seven days of making the interim disposition order so that the court can review it to determine the appropriate future management of the person.138
  2. 8.132 If the person cannot return to the state that made the original supervision order, the court may make the person subject to a supervision order or unconditionally release the person.139

Interstate transfer orders

Overview

  1. 8.133 Interstate transfer orders provisions in the CMIA govern the approved transfer of people on supervision orders in and out of Victoria. A separate set of CMIA provisions, discussed at [8.129]–[8.132], govern the entry of people on supervision orders from another state who arrive in Victoria without approval.
  2. 8.134 The CMIA contains provisions that allow people subject to supervision orders in Victoria to transfer to other states and supervised people subject to corresponding laws to transfer to Victoria.
  3. 8.135 A person subject to a supervision order must give informed consent to transfer to another state. The person must give consent in writing after the person receives an explanation of the process of the transfer, the reasons for the transfer and has had the opportunity to ask and have answered any questions they may have.140
  4. 8.136 Transfer provisions aim ‘to promote rehabilitation and the reunion of families separated under difficult circumstances’.141

Transfer of people from Victoria to another state

  1. 8.137 There are two main requirements for a person subject to a supervision order to transfer from Victoria to another state. These are:
  • the laws of the state the person would like to transfer to must allow the transfer, and
  • the Minister administering the transfer must allow the transfer by making an order.142
  1. 8.138 The Minister may only allow the transfer if they are satisfied that:
  • the Chief Psychiatrist has provided a written statement that the transfer is of benefit to the person subject to a supervision order, and
  • the Minister is satisfied that the transfer is allowed by laws of the state the person would like to transfer to and the person subject to the supervision order has given informed consent to the transfer or if unable to give informed consent, their guardian has given informed consent to the transfer.143

Transfer of people from another state to Victoria

  1. 8.139 A person subject to a supervision order in another state must meet the requirements outlined above at [8.137] and [8.138] to transfer to Victoria, with some additional requirements.
  2. 8.140 The additional requirements for people transferring to Victoria are:
  • the Minister is satisfied that ‘the transfer is necessary for the maintenance or re-establishment of family relationships or relationships with people who can assist in supporting the person’144, and
  • the Chief Psychiatrist has provided a written statement that there are facilities or services available for the custody, care and treatment of the person.145
  1. 8.141 Upon arrival in Victoria, the person is placed on an ‘interim order’ and within six months, an application must be made to the Supreme Court for a review.146 At the review, the court may place the person on a supervision order or order the person’s unconditional release.147 If the person is placed on a supervision order, the court must set a nominal term.148 The Supreme Court cannot make an order that is ‘more restrictive on the person’s freedom and personal autonomy’ than the order the person was on interstate, unless the safety of the person or members of the public would be seriously endangered if a more restrictive order is not made.149

Difficulty in effecting interstate transfers

  1. 8.142 Throughout Australia, the laws governing the supervision of people who are unfit to stand trial or found not guilty because of mental impairment are different. This can create complexity when a person subject to a supervision order in one state, moves to another state. There is no uniform legislation governing the interstate transfer of people subject to supervision orders in Australia and therefore interstate agreements govern the process.150 Limited progress has been made in finalising these agreements, ‘notwithstanding the existence of legislation enabling their development’.151
  2. 8.143 When compared with the powers to apprehend a person who has left Victoria, Carroll et al argue that the situation regarding interstate transfer orders is less ‘clear cut’ and is largely a legal problem:

It was accepted that there was a ‘conflict of laws’, of the kind that frequently arises in the Australian system of federalism. While there are often compelling arguments for interstate transfers consistent with good clinical practice, such as optimising relationships with families and other support networks, the issue unfortunately remains low on the political agenda and attendant with a high degree of political sensitivity.152

  1. 8.144 Interstate transfers can be beneficial for the person subject to the supervision order and their family members. However, there may be a range of reasons the transfers are difficult to effect, including the lack of complementary provisions across jurisdictions, a lack of motivation on the part of the people who are able to initiate these transfers and possibly a lack of straightforward mechanisms in the legislation to enable the transfers to occur.

Questions

  1. 83What are the barriers to effecting interstate transfers under the CMIA?

  2. 84If there are barriers, what changes should be made to make the process more efficient?

 

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