Ethical dilemmas facing lawyers under the Crimes (Mental Impairment and Unfitness to be Tried) Act

You are representing a client, charged with assault, who has paranoid schizophrenia. There is evidence to suggest that he acted in self defence. A preliminary examination by a psychiatrist indicates that your client is probably unfit to stand trial. You need to decide whether to raise the question of your client’s unfitness to stand trial, or proceed to an ordinary trial and make a case based on self defence. It is almost impossible to obtain coherent instructions from your client. What do you do?

If you have been in a situation like this, the Victorian Law Reform Commission (VLRC) wants to hear from you.

The VLRC is reviewing the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA), to decide whether changes to the legislation are required. This includes consideration of the ethical difficulties that lawyers may encounter, related to mental conditions among people subject to the criminal justice process.

Lawyers generally have a duty to act in accordance with a client’s instructions.   Sometimes a client’s capacity to provide instructions is in question, due to a mental illness, intellectual disability or cognitive impairment. (Substitute decision makers are not available in CMIA matters.)   When this occurs, a lawyer may be in ‘a position of conflict when determining how to act in the client’s best interests’. 
The process of determining unfitness to stand trial begins when the question of unfitness is raised. If the trial judge determines that there is a real and substantial question as to the unfitness of the accused to stand trial, a jury conducts an investigation. 

Lawyers, particularly defence lawyers, are often the ones who raise the question of unfitness.  This can put them in a difficult position, particularly if a client is unable to provide instructions on whether they want to proceed under the CMIA pathway. Where this is the case, the lawyer is required to make the decision on behalf of the client.

A lawyer may feel conflicted between the benefits of the CMIA process and its potential drawbacks. On the one hand, proceeding under the CMIA ensures that the rights of an unfit client to a fair criminal hearing are protected via a special hearing process, and that the client is not convicted and sentenced for an offence for which they have not  been found criminally responsible. On the other hand, the consequences under the CMIA can result in significant restrictions to the liberty of a client, such as an indeterminate period of supervision.

Another ethical dilemma involves the potential difficulty in obtaining instructions from clients on how to proceed in a special hearing after they have been found unfit to stand trial. For example, a client may be unable to instruct their lawyer on whether they want to raise any defences to the charge. This includes the defence of mental impairment which can be raised at a special hearing. The ethical obligations of lawyers in these circumstances are unclear.

Further ethical issues arise when a lawyer advises a client about the likely sentence and non-parole period their client might expect if they plead guilty or go to trial and are found guilty, compared with the likely consequences of a finding of not guilty because of mental impairment. The latter could mean an indefinite supervision order. The client may choose to plead guilty and have the certainty of a definite prison sentence rather than an indefinite supervision order, even if they have a legitimate mental impairment defence.

As an accused person is highly reliant on their lawyer in CMIA matters, it is vital that lawyers have a good working knowledge of the Act when providing advice, to ensure that clients appreciate the legal consequences of going down the CMIA pathway. Lawyers should understand the indefinite nature of a supervision order, the meaning and implications of a nominal term  and the restrictions that will be placed on a person’s liberty. This is even more important when it is not possible for a client to appreciate the consequences due to their mental condition. In these circumstances, the lawyer must make decisions in the best interests of their client. This raises the question of what these ‘best interests’ are, particularly in the context of the tension between the therapeutic elements of the CMIA and the adversarial system within which it operates.

Lawyers should also make decisions within the CMIA framework in a manner consistent with its underlying principles.   The system could result in unfairness and risks to community safety if people who may be unfit to stand trial, or not guilty because of mental impairment, avoid the CMIA process because of their perception that an outcome under the ordinary criminal justice system is preferable to an outcome under the CMIA. 
The Commission wants to hear from lawyers interested or experienced in CMIA matters such as these. You can make a submission in response to the consultation paper by Friday 23 August 2013 or meet the Commission as part of the formal consultations. For more information see or contact team leader Nina Hudson:

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