9. Decision making and interests under the CMIA

Introduction

  1. 9.1 The terms of reference ask the Commission to consider whether changes should be made to the provisions governing supervision and review in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA). The Commission has been asked to consider 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.
  2. 9.2 Chapter 7 and Chapter 8 discuss process issues regarding the CMIA system of supervision. Chapter 7 focuses on the making of orders and other consequences following findings under the CMIA. Chapter 8 considers a range of issues in the processes for review, leave and the management of people subject to supervision orders.
  3. 9.3 However, the CMIA supervision regime as a whole also faces a number of broad, systemic issues. This chapter addresses these issues. The purpose of this chapter is to take a holistic view of the CMIA supervision regime and to encourage comments on what improvements, if any, could be made to it at a systemic level. This chapter addresses the following issues:
  • flexibility in the system
  • decision making by the court, Forensic Leave Panel, experts and people responsible for supervision
  • consideration and representation of various interests involved, including the interests of people subject to supervision orders, victims, family members and the community
  • suitability of the system for people with intellectual disabilities or cognitive impairments
  • suppression orders.

The flexibility in the system

  1. 9.4 When making supervision orders under the CMIA, courts have limited orders to impose in relation to people declared liable to supervision. The court can either impose a custodial supervision order or a non-custodial supervision order. If the court does not declare a person to be liable to supervision, the court only has the option of ordering that the person be released unconditionally. When varying an order during a review, further review or major review, the court can generally choose between custodial supervision orders, non-custodial supervision orders (with varying conditions) or a revocation of a non-custodial supervision order to release the person. When a person subject to a non-custodial supervision order has not complied with the order, the possible outcomes are similar: the court may confirm the order, vary the conditions of the non-custodial supervision order or move the person back to a custodial supervision order.
  2. 9.5 The Commission’s preliminary research indicates that while courts are able to address breaches, the orders available to the court at various stages of the supervision regime may be unduly limited. This issue arises mainly in:
  • making and reviewing supervision orders
  • addressing the non-compliance of supervision orders.
  1. 9.6 The system’s potential lack of flexibility could result in a mismatch between the supervision the person should ideally receive and the supervision order that is actually made. A person subject to a custodial supervision order, for example, could be managed in lower security facilities rather than in the high security setting at the Thomas Embling Hospital in cases where the level of offending was not serious or their mental illness is not acute (but the person still requires a higher level of supervision than that available on a non-custodial supervision order). A person with an intellectual disability may be better managed under the Disability Act2006 (Vic) that would give them the benefit of a treatment plan, currently not required or reviewable under the CMIA.
  2. 9.7 The current system’s potential lack of flexibility could also be problematic in terms of the limitations that it imposes when responding to the non-compliance of a supervision order. A person who breaches a non-custodial supervision order, for example, may do so because of drug or alcohol use, and not because of re-offending or because they are experiencing symptoms of their mental illness. In these circumstances, making an order that would target the drug or alcohol issue could be a better approach than moving the person back to a custodial supervision order and would also be more consistent with the principle of least restriction underlying the CMIA.
  3. 9.8 A lack of flexibility in the CMIA could also suggest issues with the way the CMIA operates in conjunction with other legislation that works alongside it to facilitate the treatment and management of people subject to the CMIA. The Commission’s preliminary research indicates that there may be a need to examine how the CMIA interacts with other relevant legislation, including the Mental Health Act 1986 (Vic) and the Disability Act, and whether there are areas that prevent the CMIA from operating consistently with its underlying principles.
  4. 9.9 The potential issues regarding the lack of flexibility in the CMIA system of supervision prompt an examination of whether courts should be able to select from a wider range of options, such as civil mental health orders. In Tasmania’s system, for example, the court can make the following orders when making and reviewing supervision orders:
  • a restriction order
  • an order to release the defendant and make a supervision order
  • a continuing care order
  • an order to release the defendant and make a community treatment order
  • an order to release the defendant on such conditions as the court considers appropriate, or
  • an order to release the defendant unconditionally.1
  1. 9.10 The New South Wales Law Reform Commission has suggested that courts should be able to make ‘treatment orders’, such as the ones available in England and Wales.2In England and Wales, courts can make the following orders after a qualified finding of guilt or a finding of not guilty because of insanity:
  • a hospital order under the Mental Health Act 1983 (UK) with or without a restriction order3
  • a supervision order, or
  • an order for their absolute discharge.4

Questions

  1. 85Is there a need for more flexibility in making and reviewing supervision orders and addressing non-compliance under the CMIA?

  2. <86What changes should be made to give the system more flexibility where needed?

 

Decision making in the CMIA supervision system

  1. 9.11 In this section, the Commission considers the approach to decision making in the CMIA system of supervision. This includes decisions made by the courts, the Forensic Leave Panel, experts and people responsible for the supervision and treatment of people subject to the CMIA.

Principles and matters the court considers

  1. 9.12 The CMIA requires that in making, varying or revoking a supervision order or granting or revoking extended leave, the court must apply the principle that ‘restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community’.5
  2. 9.13 The court must also have regard to:
  • the nature of the person’s mental impairment or other condition or disability
  • the relationship between the impairment, condition or disability and the offending conduct
  • whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of their mental impairment
  • the need to protect people from such danger
  • whether there are adequate resources available for the treatment and support of the person in the community, and
  • any other matters the court thinks relevant.6
  1. 9.14 Reports play an important role in the court’s decision making. The court must obtain and consider reports from a range of people involved in the supervision of the person including medical practitioners, psychologists, other people involved in supervising the person, and from victims and family members who may have submitted a report.7
  2. 9.15 Additionally, in extended leave applications, the court may grant extended leave if it is satisfied that the safety of the forensic patient or forensic resident, or members of the public will not be seriously endangered as a result of the forensic patient or forensic resident’s extended leave.8 Courts must consider the leave plan filed in support of applications for extended leave.9

Application of the principles and matters the court is to consider

  1. 9.16 The next section will consider how the court applies sections 39 and 40 of the CMIA and whether the current criteria and its application is striking the right balance between the freedom of people subject to supervision orders and the safety of the community.

Presumptions

  1. 9.17 In major reviews, there is a presumption that the court must vary a custodial supervision order to a non-custodial supervision order unless the court is satisfied on the evidence available that the safety of the person subject to the supervision order or members of the public will be seriously endangered as a result of reducing the supervision status of the person.10 This presumption is advantageous to the person subject to a supervision order. However, it stands in contrast with the presumption that applies to varying orders when an application is made. In this case, the presumption is in favour of keeping the person on the custodial supervision order. Section 32(2) of the CMIA provides that the court must not vary a custodial supervision order to a non-custodial supervision order unless satisfied that the safety of the person subject to the supervision order or members of the public will not be seriously endangered.
  2. 9.18 In extended leave matters, there is no presumption either way. The court may grant an application of extended leave if satisfied that the safety of the forensic patient or forensic resident will not be seriously endangered because of the extended leave.11
  3. 9.19 The existence of different presumptions that apply at various stages of the decision-making process prompts examination of why these differences exist and how they operate in practice at different stages of review.

Question

  1. 87Are the current presumptions in varying and revoking supervision orders appropriate?

 

The role of dangerousness

  1. 9.20 A significant part of the decision to make, vary or revoke a supervision order or to grant extended leave hinges on the court’s assessment of the dangerousness of the person subject to the supervision order. The system currently in place, that permits the detention of a person based on the likelihood of endangerment, is a system of preventive detention, justified because of community protection. McSherry says:

There is a presumption that a person who has committed a crime once because of his or her mental impairment will be driven to do so again. In this sense, those found not criminally responsible have generally been detained on the basis of ‘dangerousness’. That is, they are perceived as dangerous individuals who may do harm again.12

  1. 9.21 Justice Cummins set out the process in Re PL:

Predicting dangerousness is notoriously difficult. No guarantees ever can be given. Bearing in mind that many applicants have killed, the court moves very cautiously. The court carefully takes into account the circumstances of the original events. On the question of community safety, the court has regard to the length of time between the events and the application because the applicant has been found to have committed the relevant serious actions. The court examines the treatment, insight and progress of the applicant and considers expert evidence from very experienced medical and other professionals. It calls upon its own experience of human behaviour and of recidivism and reformation. Thus the court proceeds with as much responsible data as reasonably can be obtained, to seek to ensure community safety as contemplated by the [CMIA]. However, it must be remembered that applicants found not guilty by reason of mental impairment (or previously insanity) have not been convicted of a crime. Characteristically, they have suffered from a mental illness. The court’s jurisdiction in that respect is protective. It should be remembered that ultimately the best protection for the community is that persons found not guilty by reason of mental impairment are able to return to the community as useful citizens.13

  1. 9.22 Relying on the risk of endangerment could potentially raise a number of issues.
  2. 9.23 First, it is difficult to demonstrate that a person subject to a supervision order will not pose a serious or likely danger following a change in the level of supervision. As Freckelton observes, having to satisfy a ‘negative’ or that something will not happen, is difficult to prove.14
  3. 9.24 Secondly, assessing dangerousness could be subject to much subjective interpretation—assessing future risk requires the court to embrace notions of uncertainty and to consider the ‘likelihood of such [future] risk becoming a reality’.15 The interpretation of the term ‘serious endangerment’ has been ‘somewhat elastic’.16 The CMIA does not define what the term means, for example, whether it requires the endangerment to be physical or psychological, or whether it requires the risk that an actual violent offence will be committed (as opposed to a non-violent offence). The use of ‘likely to endanger’ in some parts of the CMIA and ‘seriously endanger’ in others also implies that different thresholds for court intervention apply at different stages of the process, that could add to the subjectivity.
  4. 9.25 Thirdly, using dangerousness as the basis of a decision raises the question of whether this could lead to overly cautious decision making (discussed later in the chapter at [9.51]–[9.58]) and if this is the case, whether the criteria the court considers should be based on something other than dangerousness. Carroll, Lyall and Forrester distinguish between two types of legislation: ‘disorder’ based legislation and ‘risk’ based legislation.
  5. 9.26 The ‘disorder’ based approach, taken in England and Wales and some jurisdictions in the United States, relies on the same criteria for the detention of forensic patients as for civil patients. This approach requires an ongoing mental disorder.17 In England and Wales, the Mental Health Review Tribunal must discharge a person subject to an unrestricted hospital order on a number of criteria. The person must be discharged if the Tribunal is not satisfied:
  • that they are suffering from a mental disorder that makes it appropriate for them to be detained in a hospital
  • that it is necessary for the health or safety of the patient or of other people
  • that appropriate medical treatment is available for them.18
  1. 9.27 Further, in that jurisdiction the court may revoke a supervision order if it would be in the interests of the health or welfare of the person.19
  2. 9.28 Victoria adopts the ‘risk based’ approach. Under this approach the criteria for detention and supervision relate not to the persistence of the person’s mental disorder, but to the risk of harm to others (and, to self, in some cases).20
  3. 9.29 Some other Australian jurisdictions use the ‘risk’ based approach. However not all of them use ‘danger’ as the basis for their tests. In Western Australia, for example, the Mentally Impaired Accused Review Board considers ‘the degree of risk that the release of the accused appears to present to the personal safety of people in the community or of any individual in the community’ when deciding whether to grant leave.21 In Queensland, the Mental Health Court must not revoke a forensic order ‘unless it is satisfied the patient does not represent an unacceptable risk to the safety of the patient or others’.22

Question

  1. 88Should the court continue to consider the ‘dangerousness’ of the person subject to the supervision order?

 

Danger to themselves

  1. 9.30 The current criteria for making, varying or revoking a supervision order, or granting a person extended leave, require the court to consider not just the likelihood of the person endangering other people but also the likelihood of the person endangering him or herself. The New South Wales Law Reform Commission has questioned whether where the person only poses a threat to him or herself, this is a sufficient and appropriate basis for a criminal court to order the person’s detention.23 It says:

an argument can be made that it is inappropriate to use the coercive apparatus of the criminal justice system (and the associated forensic mental health system) solely for the purpose of preventing an offender, who has not been convicted of a crime, from harming him or herself. This is particularly so in light of the detailed civil legislative and administrative arrangements that exist to care, support and supervise people in the general community …24

  1. 9.31 The New South Wales Law Reform Commission has suggested that such people could be managed in the civil mental health system or other care arrangements that take into account a person’s risk of harming themselves.25

Question

  1. 89Should the court continue to consider the likelihood of the person endangering themselves?

 

The role of the offence in assessing dangerousness

  1. 9.32 A 2010 study of people found not guilty because of mental impairment in Victoria found that the seriousness of the offence tends to be a recurring consideration when courts make and review supervision orders under the CMIA. The study suggested that offence seriousness ‘remains at the forefront of the risk assessment process’, especially when courts are making the initial order.26 The seriousness of an offence is not included in the matters specified in section 40 of the CMIA that the court is required to take into account. However, the court is required to consider the relationship between the impairment, condition or disability and the offending conduct. The influence of offence seriousness in decision making under the CMIA may therefore be contrary to its underlying principles. A key principle is that a person should not be punished for an offence for which they are not criminally responsible.
  2. 9.33 People who have been unfit to stand trial and then found to have committed the offence at a special hearing are not punished for the offence as they have not had a proper trial of the charge. People who have been found not guilty because of mental impairment are also not criminally responsible for their offence because the court has held that the person is not responsible for their actions.27
  3. 9.34 The logical extension of the principle that people subject to the CMIA should not be treated in the same way as people who are found to be criminally responsible for an offence in a trial is that any period of detention that person is subject to should bear ‘no nexus to the offence charged’.28
  4. 9.35 Tying the matters that are traditionally sentencing principles (for example, the principle of proportionality reflected in the consideration of ‘seriousness of the offence’) may inadvertently import a punitive element to the decision making and constrain the ability of the court to make a true assessment of future risk.29 People subject to the CMIA might end up subject to more restrictive orders or in custody for longer than they should be. This is inconsistent with the principle of least restriction. On the other hand, it has been argued that:

Given that past behaviour is the single best predictor of future behaviour, it is actually understandable and appropriate that the index offence exerts an influence on risk management decisions. The challenge for clinicians is to ensure that this does not occur in a facile manner, whereby, for example, certain sorts of offence necessarily result in certain lengths of detention [citation omitted].30

  1. 9.36 Further, if a person is subject to a supervision order for a minor offence, a failure to consider the seriousness of the offence could result in a more restrictive order or detention of the person for periods in excess of the time they would have served in the usual criminal justice system.31
  2. 9.37 A Victorian study has concluded that courts in this jurisdiction are not using an informal tariff based on the seriousness of the offence to determine the length of detention of people found not guilty because of mental impairment following the making of the initial order.32 However, when courts are making the initial order, the seriousness of the offence is an important consideration in deciding which order to make.33

Question

  1. 90What role should the seriousness of the offence play in the making, varying and revocation of orders and applications of leave?

 

Other factors that affect decision making

  1. 9.38 The criteria in section 40 of the CMIA attempt to strike a balance between the person subject to the supervision order’s freedom and the safety of the community. As McSherry observes:

The problem really lies in drawing up appropriate criteria which will lead to the detention of those who really may do harm in the future, whilst allowing for the absolute discharge of those who do not pose a risk to the public.34

  1. 9.39 Aside from the likelihood of danger and the matters in section 40 of the CMIA, decisions in CMIA matters provide further insight into the other factors that play a role in the court’s decision making. These include:
  • The nature of the person’s mental impairment—while this is one of the matters section 40 includes, courts also consider related issues such as the person’s responsiveness to treatment,35 control of any ongoing symptoms36 and the person’s compliance with medical treatment.37
  • The person’s insight—the CMIA does not require the court to consider insight, however, courts often look into the level of insight the person has into their mental illness and into the circumstances of the offence.38
  • The ability to monitor any re-emergence of symptoms39—courts have considered, for example, the ability of the treating team to apprehend the person or suspend leave if necessary.40
  • The views of psychiatrists—the opinions of the supervising clinicians which they present through their reports and by giving evidence in court are influential in the court’s decision making.41
  • The person’s previous downgrading of supervision—courts consider, for example, development of rapport with treating team,42 tendency to use drugs and alcohol,43 and the willingness of the person to self-report to their area mental health service if they relapse.44
  • The likelihood of care in the civil mental health system45—courts have also considered whether the person could be detained under the Mental Health Act when deciding whether to vary an order.46

Question

  1. 91Should the CMIA provide more guidance to the courts on the factors relevant to making, varying and revoking orders and applications of leave? If so, what guidance should be provided?

 

Principles and matters the Forensic Leave Panel considers

  1. 9.40 In leave applications, the authorised psychiatrist or Secretary to the Department of Human Services must grant an application for special leave if satisfied that the safety of members of the public will not be seriously endangered.47 The Forensic Leave Panel may grant an application for on-ground leave or limited off-ground leave if satisfied the safety of the forensic patient or forensic resident or members of the public will not be seriously endangered as a result of the leave.48 Dangerousness as a factor in decision making was discussed in this chapter at [9.20]–[9.37].

Guidance for making decisions about leave

  1. 9.41 One issue that arises for consideration is whether the CMIA provides sufficient guidance to the Forensic Leave Panel for making decisions on leave. The Review Panel Appointed to Consider Leave Arrangements for Patients at the Victorian Institute of Forensic Health (Vincent Review) recommended that the government consider whether to amend the CMIA to ensure that the Forensic Leave Panel considers specific criteria before granting leave.49 Previously, the main criteria for deciding whether or not to grant leave were based on the dangerousness of the person. The Vincent Review noted that while the Supreme Court had provided some guidance on the statutory interpretation of that provision, there was still some uncertainty in its interpretation that would benefit from clarification.50
  2. 9.42 The legislature amended the CMIA to implement the recommendation by the Vincent Review. Now the CMIA also requires the Forensic Leave Panel to have regard to the person’s current mental condition or pattern of behaviour, clinical history, social circumstances and the applicant profile and leave plan.51
  3. 9.43 There is more guidance for the Forensic Leave Panel following the amendments to the CMIA. However, this guidance is not as extensive as the guidance provided to courts in section 40 for a decision to make, vary or revoke a supervision order or to grant or revoke extended leave.52

Question

  1. 92Is there a need for additional legislative guidance for the Forensic Leave Panel in making leave decisions? If so, what guidance should be provided?

 

Role of experts and people responsible for supervision

  1. 9.44 The CMIA introduced a comprehensive system for the provision of expert reports. Reports play a number of roles:
  • to communicate information
  • to prepare the ground for giving evidence in court
  • to facilitate treatment
  • to demonstrate the proper conduct of the expert assessment
  • to aid the measurement of clinical and forensic practice.53
  1. 9.45 An expert prepares a report if a person is declared to be liable to supervision that contains information on:
  • a diagnosis and prognosis of the condition or an outline of the person’s behavioural problems
  • the person’s response to treatment, therapy or counselling (if any), and
  • a suggested treatment or other plan for managing the condition.54
  1. 9.46 The report must be filed within 30 days after the declaration or within a longer period if the court allows it,55 but generally these reports are filed very early in the process.
  2. 9.47 Routine reports must then be prepared and filed with the court (at intervals not exceeding 12 months for the duration of the order) containing:
  • a statement of any treatment, therapy or counselling that the person has undergone, or any services that the person has received, since the making of the order or last report
  • any changes to the prognosis of the person’s condition or the person’s behavioural problems and the plan for managing the condition or problems.56
  1. 9.48 Under the CMIA, the court cannot order a person’s unconditional release, or significantly reduce the level of supervision the person is subject to, unless it:
  • has obtained and considered a report from an expert who has personally examined the person’s mental condition and the possible effect of the proposed order on the person’s behaviour
  • has obtained and considered the report of a person having the supervision of the person subject to the order where relevant
  • has considered the section 41(1) or (3) report submitted to the court (that is, the report prepared when the person was declared liable to supervision, and the annual reports prepared following that initial report)
  • has considered the leave plan filed in the case of an application for extended leave
  • has obtained and considered any other reports it thinks necessary.57
  1. 9.49 Evidently, the emphasis the CMIA places on reports from experts and the people responsible for supervision means that the views of these groups are influential in the decision making of the court. It is therefore important that reports are provided at the right stage of the process, supported by a second report when needed, and are of a high standard.
  2. 9.50 Further, it is quite common for someone to be both the person responsible for supervision (for example, the treating clinician) and the expert responsible for preparing reports on the person subject to the supervision order. These people may find themselves in a difficult position where they feel a duty to maintain a confidential and supportive relationship with the person subject to the supervision order, but at the same time are relied on as the main source of information to the court on that person.

Question

  1. 93Are changes required to improve the way in which expert reports are provided to the courts? If so, what changes are required?

 

Influence of decision making on lengths of detention

  1. 9.51 Given the concerns over indefinite detention under the Governor’s pleasure regime, there was an expectation that the CMIA would result in shorter periods of detention.58 Since the CMIA came into operation, however, a number of commentators have observed that an overly cautious approach is being taken in the making and review of supervision orders.59
  2. 9.52 A Victorian PhD study of 146 people found not guilty because of mental impairment between the CMIA’s introduction in 1997 to late 2006 was published in 2010. It found that the time served by many people found not guilty because of mental impairment has actually increased under the CMIA.60 The study found that the average length to revocation for both violent and non-violent offences was 10.09 years, compared to the average 8.5 years spent under Governor’s pleasure orders between 1946 and 1995.61 Ruffles says:

the establishment of a ‘staggered’ system for release was intended to provide a practical means by which the principle of least restriction could be operationalised, ensuring that community reintegration remains a central aim in the management of forensic patients … However, the finding that periods of detention served by forensic patients have not lessened under the CMIA indicates that legislative measures designed to offset the conservative bias of the risk-based approach have not functioned as intended.’62

  1. 9.53 The study noted, however, that a number of people who were transitioned from the Governor’s pleasure regime to the CMIA system were included in the collection of data and that this may have led to an inflation of the CMIA period of detention.63 The people under the Governor’s pleasure regime could have also skewed the results because they were less likely to be released in any case (for example, because they were not responsive to treatment).
  2. 9.54 Further, it may be that while people subject to supervision orders are still subject to orders for long periods, they may be in detention for a shorter period of time than under the Governor’s pleasure system. Freckelton has observed that the Supreme Court has been more liberal in revoking orders from a custodial supervision order to non-custodial supervision order than in revoking supervisory status completely.64 Another possibility is that decision makers took a more cautious approach when the CMIA was first introduced, but the inertia caused by the Governor’s pleasure system is gradually wearing off. Between 2010–11 and 2011–12, for example, the number of non-custodial supervision orders revoked for forensic patients doubled from five to 10.
  3. 9.55 If it exists, it is unclear where the over-cautiousness comes from, but there are a number of possible sources. The process of applying for the variation or revocation of supervision orders, leave and ultimately a release is mainly driven by the opinion of the treating team. Clinicians understandably tread cautiously because of the serious consequences involved if they recommend the premature release of a person. Any missteps could be detrimental not just to the person subject to the supervision order and the general public, but could lead to ‘political disapproval, interference and ultimately undermine service provision’.65 Further, individual attitudes of clinicians towards the person subject to a supervision order could be a significant factor in whether they apply for a variation or revocation of the order, leave or release.66
  4. 9.56 Another source of possible over-cautiousness may be the approach taken by judges towards the release of a person subject to a supervision order. Discharging a person subject to a supervision order requires taking a ‘step into the unknown’.67 If there is a judicial tendency towards over-cautiousness, it is understandable given the inability of the evidence before the court to provide it with any certainty of the outcome.68
  5. 9.57 However, cautiousness does not necessarily warrant legislative intervention. Freckelton says:

There remains cautiousness in decision-making but that is justified in most instances given the violence engaged in by acquittees and their illness course. … the Victorian experiment in a little over its first decade has suggested that Supreme Court judges for the most part have undertaken the risk-assessment process in a clinically informed and considered way. The outcome has been reintegration of acquittees into the community in a staged process attended by the exercise of caution, but caution that generally has been clinically warranted.69

  1. 9.58 Recidivism rates among people found not guilty because of mental impairment who have been released are low.70 This could mean that the system is working and courts are detaining people consistently with the principle that restrictions should be kept at a minimum consistent with the safety of the community. However, it could also mean that courts are being overly cautious.

Question

  1. 94Is the current approach to decision making in relation to people subject to supervision orders overly cautious?

 

Other models of decision making

  1. 9.59 If the approach currently taken by decision makers is unduly cautious, the next issue to consider is whether anything can be done to remedy the over-cautiousness. Part of the solution may involve giving courts more flexibility in making orders, discussed earlier, that may make it more likely that the person subject to the supervision order will be shifted out of the forensic mental health system and into the civil mental health system. In New South Wales, for example, the Mental Health Review Tribunal can reclassify the forensic patient as an involuntary patient under the civil mental health system.71 Another option, also discussed earlier, could involve changing the matters courts have regard to in making, varying and revoking supervision orders, for example, by moving from a ‘risk based’ approach to a ‘disorder based’ approach. Changing the way in which courts make decisions may have a trickle down effect to the way experts and clinicians make decisions as well.
  2. 9.60 In the Commission’s preliminary research, there was some suggestion that a specialised independent court or tribunal should be considered as a way of addressing the possible over cautiousness. This was based on the notion that this may allow for judges to develop a higher level of expertise in forensic mental health and the greater involvement of clinicians in these courts or tribunals.
  3. 9.61 There are a number of different models of decision making involving independent courts or tribunals. For example:
  • Queensland has a model where a mental health court makes the initial disposition and a separate tribunal deals with the review and release of people subject to supervision orders.
  • In New South Wales, the court makes the initial order for supervision, but a separate tribunal reviews the orders following that initial order.
  • In the Australian Capital Territory, the hearing proceeds in court but an administrative tribunal makes and reviews the order.
  1. 9.62 The Queensland Mental Health Court has the jurisdiction to determine unfitness to stand trial and whether a person is not guilty because of mental impairment. It also has the jurisdiction to make a ‘forensic order’ to detain a person for involuntary treatment and care.72 The court comprises a judicial officer and two psychiatrists. The Mental Health Review Tribunal then reviews the person under the forensic order at least every six months.73
  2. 9.63 In New South Wales, following a decision by the court, forensic patients are subject to the jurisdiction of the Forensic Division of the Mental Health Review Tribunal, that has a specialist forensic division. The Mental Health Review Tribunal has the power to make orders in relation to the person’s care, detention or treatment and the forensic patient’s release (either unconditionally or subject to conditions) following an initial review.74 The Mental Health Review Tribunal also reviews breaches of conditions of release or leave.75 Reviews generally occur every six months but on the application of the patient or the primary carer of the patient, the Tribunal can extend this period to a maximum of 12 months.76
  3. 9.64 This is in contrast to the approach in the Australian Capital Territory where the court refers the making of a mental health order to the Civil and Administrative Tribunal.77 The Civil and Administrative Tribunal also reviews the mental health orders.78
  4. 9.65 Canada has a similar system to the Australian Capital Territory where each province has a review board that makes and reviews dispositions of people who have been found not criminally responsible by reason of mental disorder or unfit to stand trial.79 The court has the discretion to make the original disposition if it chooses to.80 A study published in 1997 found the absence of a relationship in British Columbia between the seriousness of the offence and the type of order the review board initially makes.81
  5. 9.66 Aside from potentially ameliorating over-cautiousness in decision making, mental health courts or tribunals have other benefits. Freckelton observes:

Inquisitorial review bodies constituted by lawyers experienced in mental health, psychiatrists and community members with lengthy experience in mental health generally enjoy a significant advantage over the courts in exploring the dangerousness of persons with mental illness and assimilating the presentation of such patients. Adversarial courts are ill-suited to such a process and risk being insensitive to psychiatric illness realities and also to being counter-therapeutic in their outcome.82

  1. 9.67 The informality and inquisitorial (as opposed to adversarial) nature of the proceedings could make it more accessible for people subject to the supervision order, victims and family members.83 Further, from a resource perspective, a mental health court or tribunal would have greater capacity to schedule matters, and perhaps more capacity to monitor a person’s progress, and would free up resources in other courts.84
  2. 9.68 There are, however, a number of benefits in maintaining the judicial model of decision making under the CMIA. Courts have an established procedural framework and safeguards, including mechanisms for appeal.85 Since the introduction of the CMIA, Victorian courts have produced what has been described as ‘Australia’s richest and most complex jurisprudence in relation to mental health law’.86 The value of the jurisprudence and the expertise that has developed within the current judicial model should not be underestimated.
  3. 9.69 Courts also provide continuity in approach—in many cases, the judge who made the supervision order is also responsible for the review and revocation of that order.87 Further, courts provide a forum that is more open to public scrutiny, which may be desirable in CMIA matters. In his Honour’s submission to the Community Development Committee, Justice Vincent said:

The individual concerned has been detained following the conduct of a public court hearing and is subject to a public order. The problem should go back to that kind of body and be dealt with in the same way.88

  1. 9.70 Finally, courts confer a certain ‘degree of authority’,89 which may be more effective at reassuring victims that their interests are important and being meaningfully represented.90 The Community Development Committee ultimately recommended that given the sensitive nature of proceedings in this area, the community would have the most confidence in the decisions of a court.91

Question

  1. 95Should there be a change in the judicial model of decision making under the CMIA?

 

Representation of interests

Representation of people subject to supervision orders

Legal representation

  1. 9.71 A person subject to a supervision order has the right to appear before the court in person in any hearing in that the court is considering:
  • making, varying or revoking a supervision order in respect of the person
  • granting extended leave to the person, or
  • revoking a grant of extended leave.92
  1. 9.72 Section 36(3) of the CMIA allows the person subject to a supervision order to be legally represented at any of these hearings. A person applying for leave before the court or Forensic Leave Panel may also be represented by a legal practitioner.93
  2. 9.73 The Commission’s preliminary research suggests that most people subject to a supervision order have legal representation when the court is making, varying or revoking the order. However, legal representation at Forensic Leave Panel hearings may be less common. In 2011, for example, the Forensic Leave Panel conducted 22 hearings but only six of the applicants were legally represented.94

Question

  1. 96Is the level of legal representation for people subject to supervision orders in hearings to make, vary or revoke a supervision order, and leave hearings appropriate?

 

Advocacy and support for people subject to supervision orders

  1. 9.74 In its guardianship reference, the Commission proposed that people detained under the CMIA be provided with an advocate at particular times, such as:
  • at regular intervals during a period that a person is detained on a custodial supervision order
  • during hearings such as major reviews or applications to vary a custodial supervision order
  • when leave decisions are made by the Forensic Leave Panel
  • when decisions about accommodation placements after discharge are being made.95
  1. 9.75 Advocates could assist people subject to a supervision order to determine if they should apply for a review to vary the order, or to assist a person during a review hearing.96 The Commission recommended that legislation provide for the role of advocates for people subject to supervision orders.
  2. 9.76 People subject to supervision orders could also receive more support in hearings. As discussed in Chapter 4, some jurisdictions have legislative provisions that enable the court to modify its court processes to better suit people with an intellectual disability or cognitive impairment. In Queensland, for example, the Mental Health Court may appoint assistants in hearings.97 As discussed in Chapter 4, the judiciary also has a role to play in managing proceedings involving accused people with an intellectual disability or cognitive impairment.

Question

  1. 97Is there a need for more advocacy or support, in addition to legal representation, for people subject to supervision orders when they are in detention or in hearings?

 

The role and interests of victims and family members

  1. 9.77 A qualified finding of guilt or verdict of not guilty because of mental impairment can be a traumatic outcome for victims and family members of victims and people subject to supervision orders. While the court process acknowledges that the accused person did the act constituting the offence, for example, that the accused person killed the victim, for those close to the victim, the verdict may mean that no one is responsible for their death.98 As Chappell observes:

Many victims remain confused and perplexed by the proceedings, while others express anger and resentment about such a verdict, perceiving it to be unjust and a barrier to any healing process, including restorative justice.99

  1. 9.78 Issues concerning the involvement of victims and family members can be more pronounced in CMIA matters because often it is the close family members of the accused person who experience the victimisation.100
  2. 9.79 The CMIA contains provisions that acknowledge the role of victims and family members in the process and encourage their involvement.
  3. 9.80 The victims of the offence and family members of the person subject to a supervision order can make reports to the court for the purpose of:
  • assisting, counselling and treatment processes for all people affected by an offence, and
  • assisting the court in determining any conditions it may impose on an order or in determining whether or not to grant a person extended leave.101
  1. 9.81 Reports by victims and family members contain their views on the conduct of the person and the impact of that conduct on them.102 Victims and family members can make reports at various stages. This includes:
  • any point where the court makes an order following a qualified finding of guilt or not guilty because of mental impairment
  • whenever there is an application for the variation or revocation of an order
  • during a major review or whenever there is an application for extended leave (that, if granted, would significantly reduce the degree of supervision to which the person is subject).103
  1. 9.82 The CMIA also requires each victim and each family member to be notified of hearings.104 The Director of Public Prosecutions is required to give 14 days notice, by registered post, of the following court hearings in relation to a person subject to a supervision order:
  • major reviews, reviews and further reviews
  • applications for the variation or revocation of a supervision order
  • applications for extended leave, if granting the application would significantly reduce the degree of the person’s supervision.105
  1. 9.83 The Director of Public Prosecutions should not give notice to a victim or family members who have informed the Director of Public Prosecutions that they do not wish to be notified of any hearing in relation to the person subject to the supervision order.106
  2. 9.84 The Commission’s preliminary research indicated that the participation of victims and family members, while well meaning, might be in some circumstances over-inclusive. Not all victims and family members want to be notified of each hearing that concerns the person subject to a supervision order:

the extent to which individual victims find solace and satisfaction from … involvement varies widely, as does the impact and influence upon the decision-making process regarding forensic patients.107

  1. 9.85 Some victims and family members prefer to be more involved than others. The diversity in people’s reactions may mean that a ‘one size fits all’ approach is not the appropriate way of representing these interests. At present victims and family members can choose to opt out of receiving notice but many may not avail themselves of this option. It is unclear how many victims and family members have chosen not to receive notice.
  2. 9.86 Another difficulty that may arise in relation to the involvement of victims and family members is the onerous notification requirements on the Director of Public Prosecutions.

Question

  1. 98Do the CMIA provisions allow for effective participation by victims and family members?

 

Representation of community interests

  1. 9.87 A number of government bodies and the prosecution are involved in various stages of making and reviewing supervision and leave orders. The main purpose of their involvement is to represent the public interest and assist the court.

Orders for unconditional release and supervision orders

  1. 9.88 The Director of Public Prosecutions may appeal against an order for unconditional release of a person.108 A number of parties have appeal rights against a supervision order. These include the person subject to the order, the Director of Public Prosecutions, Attorney-General, the Secretary to the Department of Human Services and the Secretary to the Department of Health.109

Making, varying or revoking a supervision order and granting extended leave (or revoking extended leave)

  1. 9.89 The Attorney-General and the Director of Public Prosecutions may appear as parties to hearings, as well as any other person having a substantial interest in the matter.110 The person having the custody, care, control or supervision of the person subject to the order may also appear as a party to these hearings (with the exception of the hearing to make the supervision order).111

Appeals against confirmation, variation and revocation of supervision orders

  1. 9.90 The Secretary to the Department of Human Services or the Secretary to the Department of Health may appeal, in the public interest, against an order confirming or varying a supervision order, or an order against revoking a non-custodial supervision order, if they consider that the court should not have made the order.112
  2. 9.91 The Director of Public Prosecutions or the Attorney-General may appeal against these orders if:
  • they were a party to the proceeding in which the court confirmed or varied the supervision order, or made the order for revocation
  • they consider that the court should not have confirmed or varied the supervision order, or revoked the non-custodial supervision order
  • they consider that they should bring an appeal in the public interest.113

Leave and extended leave appeals

  1. 9.92 The CMIA does not provide for a right for government bodies or the prosecution to appear in applications for leave, however, the Forensic Leave Panel may allow a ‘person who wishes to be heard’ to appear before it.114
  2. 9.93 The Secretary to the Department of Human Services and the Secretary to the Department of Health may appeal against a grant of extended leave if they consider that the court should not have granted extended leave and they should bring an appeal in the public interest.115
  3. 9.94 The Director of Public Prosecutions or the Attorney-General may appeal against a grant of extended leave if they were party to the proceeding in which the court granted extended leave, consider that the court should not have granted extended leave and consider that they should bring an appeal in the public interest.116
  4. 9.95 The following parties can appeal to the Court of Appeal against a refusal to revoke extended leave:
  • the Secretary to the Department of Health (for forensic patients)117
  • the Secretary to the Department of Human Services (for forensic residents)118
  • the Attorney-General (for forensic patients or residents)119
  • the Director of Public Prosecutions (for forensic patients or residents).120
  1. 9.96 The Secretary to the Department of Health and the Secretary to the Department of Human Services can appeal against a refusal to revoke a person’s extended leave if they consider that:
  • the court should have revoked the extended leave, and
  • they should bring an appeal in the public interest.121
  1. 9.97 The same criteria also apply to the Attorney-General and the Director of Public Prosecutions if they wish to appeal against a refusal to revoke a person’s extended leave. However, there is an extra requirement that they must have been a party to the initial proceeding to revoke the person’s extended leave.122

Appeal against the unconditional release of a person transferred to Victoria

  1. 9.98 The Attorney-General may appeal to the Court of Appeal against a decision to unconditionally release a person who has transferred to Victoria from another State.123 To appeal, the Attorney-General must consider that:
  • the order to unconditionally release the person should not have been made
  • the Attorney-General should bring an appeal in the public interest.124
  1. 9.99 The Attorney-General may also appeal to the Court of Appeal against an order to unconditionally release a person on a supervision order from another State who has absconded to Victoria.125

Issues relating to the representation of community interests

  1. 9.100 Aside from the person subject to the supervision order, the Attorney-General, Director of Public Prosecutions, Secretary to the Department of Human Services and Secretary to the Department of Health may also be involved in hearings or appeals concerning supervision orders. The Commission’s preliminary research indicates that the involvement of these parties may be problematic for a number of reasons:
  • The interests of the executive or prosecution may be overrepresented—the current arrangement results in potentially the prosecution and three government bodies acting in opposition to the person subject to the supervision order (although the prosecution and government bodies do not always take an opposing stance). This raises the question of whether these provisions create an imbalance in representation, where the public interest is being represented in multiple guises, and whether the involvement of all four parties is necessary to effectively represent the community’s interest. Further, one of the purposes of the CMIA was to reduce executive involvement.
  • Involvement of multiple parties can have resource implications and increase the length of the process—the involvement of multiple parties could result in delays to hearings because of the number of people that need to be coordinated. If each party must put a view forward, this also results in longer hearings.
  • Lack of clarity in the CMIA on the reason for involvement—the parties involved may see their role as tokenistic or merely a formality. The CMIA does not make clear why these parties are involved at different stages, other than to represent the public interest.
  1. 9.101 Much of the Director of Public Prosecution’s role seems to be based on its knowledge of the case and perhaps because of its involvement in appeals in usual criminal matters. This is the case even though the role of the Director of Public Prosecution usually ends once an accused person is not convicted of an offence, which is the case where a person is found not guilty because of mental impairment. In practice, the Director of Public Prosecutions seeks to be excused and takes no active part in hearings after informing the court that the obligation to notify victims and family members has been fulfilled.126
  2. 9.102 In NOM v DPP & Ors (NOM),127 the Court of Appeal considered the responsibilities of the government bodies involved in CMIA proceedings. The Court of Appeal held that in addition to the function the Attorney-General and Secretary to the Department of Health usually perform in adducing evidence and cross-examining witnesses to explore the evidence, the Attorney-General and the Secretary to the Department of Health should also take a position, or make a submission, on whether the court should vary the existing regime of supervision.128 The Court of Appeal observed that a failure to take up any position could be motivated by a desire to avoid any public criticism if the person were to re-offend.129
  3. 9.103 Before NOM, the Department of Health’s role was largely administrative and focused on facilitating the production of evidence before the court.130 The role of the Attorney-General was discretionary, in that it usually involved the testing of evidence adduced by other parties, and might or might not involve submissions as to outcome. The Court of Appeal at [34]–[37] set out the reasons for its conclusion at [38] that, ‘The Secretary and the Attorney-General should adopt a clear and unequivocal position [as to outcome] where the evidence permits’. While doubtless such submissions would assist a court, it is unclear why they should be mandated. It is the court’s responsibility to decide the application, not that of any party. The Court of Appeal does not suggest any ethical duty reposes on the Secretary to the Department of Health or the Attorney-General to make submissions as to outcome, nor could it.
  4. 9.104 The Department of Human Services was not a party to the proceeding in NOM. However, due to the Department of Human Services’ similar responsibilities and rights to appear in CMIA matters where the Department of Human Services (rather than the Department of Health) supervise the person subject to the order, the decision may have implications on its obligations as well.

Questions

  1. 99Should community interests be represented in the CMIA system of supervision?

  2. 100Does the involvement of a number of agencies representing the community’s interests increase costs unnecessarily?

  3. 101What is the most appropriate way of representing the community’s interests in the CMIA?

 

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

  1. 9.105 The CMIA is modelled on a gradual or staggered system of release, based on the expectation that the person subject to the supervision order will recover and be reintegrated into the community. Both people with a mental illness and people with intellectual disabilities or cognitive impairments come under the CMIA system, unlike the New Zealand system, for example, which has created a separate disposition process for people with an intellectual disability.131
  2. 9.106 Some commentators have suggested that this gradual or staggered system of release was constructed for people with mental illnesses but is less suitable for people with intellectual disabilities or cognitive impairments:

there remains something about the machinery of the CMIA and/or its application that discriminates against the potential for intellectually disabled acquittees to move through its staggered system of release … It is submitted that the answer lies in the fact the very structure of the CMIA is uniquely skewed towards the disposition and management of forensic patients who have been acquitted on the grounds of mental illness. That is, the Act, as reflected in the staggered system of release and discharge, is built on concepts such as treatment, relapse and remission, all of which are central to the management of mentally ill persons but are largely inapplicable to intellectually disabled forensic residents, who by definition, have no prospect of complete recovery and have different management needs.132

  1. 9.107 Of the 10 forensic residents included in the study referred to in [9.52] above, no one had their supervision order revoked.133 The Forensic Leave Panel’s annual reports show that only two or three forensic residents have applied for leave each year since 2002.
  2. 9.108 The current system of supervision could be unsuitable for people with intellectual disabilities and cognitive impairments, for a number of reasons aside from the staggered nature of the system. First, the criteria for decision making may have been tailored for people with a mental illness. Section 40, for example, requires the court to consider the nature of the person’s mental impairment. In considering the nature of the person’s mental impairment, courts have generally looked at the resolution of any symptoms. People subject to supervision orders with intellectual disabilities or cognitive impairments may not pursue leave or a variation or revocation of their order because of the difficulty in demonstrating that there has been an improvement in their mental impairment.
  3. 9.109 Further, people with intellectual disabilities and cognitive impairments could have fewer resources available to them, in terms of facilities and support in the community. This may make it less likely that they will apply for leave or transition to a non-custodial supervision order or to be released. While there are a number of community-based accommodation options for people with intellectual disabilities and cognitive impairments,134 it is unclear whether there are enough. Further, the majority of these places would not have the coercive powers available under the CMIA, making it more difficult for the court to transition people out of the system.
  4. 9.110 There have been a number of significant developments in the treatment of offenders with intellectual disabilities since the introduction of the CMIA.135 Studies have shown the effectiveness of treatment programs, including anger management treatment,136 intervention for fire-setting behaviour,137 and intervention for sexual offending,138 for people with intellectual disabilities. However, Ruffles notes the unsuitability of the system could relate to the more permanent nature of an intellectual disability or cognitive impairment. Unlike people with a mental illness, these people do not have as clear a pathway to recovery. For these people, the CMIA system that envisages that a person is able to recover from their mental condition, may be a poor match.

Questions

  1. 102Is the current CMIA model of supervision appropriate for people with an intellectual disability or cognitive impairment?

  2. 103Are changes needed to the CMIA model of supervision to better meet the needs of people with an intellectual disability or cognitive impairment?

  3. 104Are changes needed to the processes and services that support the CMIA model of supervision to ensure that it meets the needs of people with an intellectual disability or cognitive impairment?

 

Suppression orders and the principle of open justice

  1. 9.111 Another potential issue that arises across the CMIA as a whole is the suppression of information under the CMIA.
  2. 9.112 The principle of open justice requires that all court proceedings take place in public except in limited circumstances. In Re Percy, Justice Kellam considered the principle of open justice in the context of the CMIA:

The principle of open justice is deeply entrenched in our law. It rests upon a legitimate concern that, if the operations of the courts are not on public view as far as possible, the administration of justice may be corrupted. A court is open when at least members of the public have a right of admission. … From this it may be thought ordinarily to follow that the media in their various forms are also entitled to communicate to the whole public what that public has a right to hear and see should they attend in court.139

  1. 9.113 The principle of open justice is reflected in section 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) that provides for a ‘fair and public hearing’ for accused people.
  2. 9.114 However, the principle of open justice can be limited, in some circumstances. Section 24(2) of the Charter, for example, provides that a court may exclude the media or the general public from hearings if permitted to do so by other laws.
  3. 9.115 One of the main aims of non-publication or suppression orders is to protect the privacy of the people involved in proceedings by preventing their identification.140
  4. 9.116 The term ‘suppression order’ is used in the heading to section 75 of the CMIA. It is not used in the Supreme Court Act 1986 (Vic) or the County Court Act 1958 (Vic). For orders under these Acts, often the term ‘non-publication order’ is used. This accurately reflects the fact that the court is open but proceedings cannot be published. In this paper the term ‘suppression order’ is used as that is the term in the CMIA.
  5. 9.117 Generally, a court may make a non-publication order only if it is necessary to do so for the proper administration of justice.141 However, under the CMIA a court may make a suppression order if it is in the public interest to do so.
  6. 9.118 The CMIA provides that in any CMIA proceeding if the court is satisfied that it is in the public interest to do so, it may order that the following information not be published (except in the manner and to the extent the court specifies in the order):
  • any evidence given in the proceeding
  • the content of any report or other document put before the court in the proceeding, and
  • any information that might enable an accused person or any person who has appeared or given evidence in the proceeding to be identified.142
  1. 9.119 A party to the proceeding may apply for a suppression order or the court may do it on its own initiative.143
  2. 9.120 In Re Percy, Justice Kellam accepted that the ‘public interest’ test under the CMIA was wider than the test for granting suppression orders in other proceedings.144 This is perhaps because people subject to supervision orders have not been found guilty of a crime.145
  3. 9.121 In Re PL, Justice Cummins said that it is in the public interest that the progressive rehabilitation of the person subject to the supervision order is not defeated.146 However, his Honour continued by saying:

It follows that suppression orders should not be granted, or come to be granted, routinely. The powerful and fundamental value of the community’s knowledge of the judicial process in its midst should not be whittled down by a developing habit of suppression. … The degree of likely negative impact [on the person subject to the supervision order] needs to be examined in each case. The existence of negative impact will not of itself justify a suppression order. Sufficient negative impact needs to be established to justify departure from the fundamental that courts are open.147

  1. 9.122 There are a number of reasons a suppression order could be important in a CMIA proceeding, including:
  • to prevent any setbacks in the treatment and recovery of the person subject to the supervision order due to publicity148
  • to avoid the stigma that people with mental illness face, particularly when connected with a qualified finding of guilty or a finding of not guilty because of mental impairment149
  • to respect the privacy of the victims involved and not deter victims from participating in proceedings150
  • the successful reintegration of the person into society.151
  1. 9.123 On the other hand, there are powerful reasons for courts to be open for public scrutiny, including media scrutiny. The public is entitled to know what decisions are being made by courts and the reasons for those decisions. Further, matters determined under the CMIA usually involve very significant harm to victims, in which the public has a legitimate interest.
  2. 9.124 The Commission’s preliminary research indicates that the practice of granting suppression orders differs between judges. At present, the Commission has little information on the issues that may arise in relation to granting suppression orders, as well as any issues in relation to compliance with and enforcement of these orders. The Commission is interested in gathering information about any issues that may exist in this area.
  3. 9.125 The Commission is aware that the Department of Justice is developing some proposals for reform to the law on suppression orders. However, suppression orders under the CMIA do not fall within the ambit of these proposals.

Questions

  1. 105What matters should the court consider when making suppression orders?

  2. 106What issues arise concerning suppression orders under the CMIA?

  3. 107What is the appropriate balance between therapeutic considerations (pointing to suppression) and open proceedings (pointing to publication)?

 

Footnotes

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