Crimes (Mental Impairment)
Tabled in Parliament Date:
The courts frequently deal with people charged with offences who require a special response from the law due to their serious mental impairment, intellectual disability or mental illness. The legal principles behind ‘unfit to stand trial’ and ‘not guilty because of mental impairment’ recognise the vulnerability of such people in our criminal justice system, and the Crimes (Mental Impairment and Fitness to be Tried) Act 1997 (Vic) (CMIA) balances their rights for humane treatment and the community’s right for safety.
In August 2012, the Commission was asked to review the Act to ensure just, effective and consistent operation with the principles that underlie it. After preliminary research, the inquiry published a consultation paper that raised a broard range of questions and concerns. Its call for responses prompted 34 public submissions. On 18 September 2013, the Attorney-General provided supplementary terms of reference that asked the Commission to consider the operation of the CMIA in the Children’s Court.
Tabled in Parliament on 21 August 2014, the Commission’s report made 107 recommendations for legislative reform, including:
• revising and clarifying the legal tests for unfitness to stand trial and the defence of mental impairment, including adding a definition of mental impairment to the law
• extending the application of the law in the Magistrates’ Court and Children’s Court
• extending the role of juries in determining the defence of mental impairment and reducing complexity in the content of jury directions under the law
• improving how community interests are represented in court hearings
• improving the level of support provided to, and acknowledgment of, victims and family members in cases under the law
• strengthening the decision making framework for review, leave and release of people subject to indefinite supervision orders
• establishing a new youth forensic facility for treating and supervising young people and a new medium-secure forensic mental health hospital
• ensuring there is equal treatment of people with an intellectual disability or other cognitive impairment under the supervision regime.
The report and consultation papers can be downloaded from the links below.
- Terms of reference received
- Submissions and consultations
- Submissions closed
- Final Report
- Tabled in parliament
Why did the law need to change?
- A person may be ‘unfit’ to stand trial if their mental processes are disordered or impaired at the time of the trial. A jury decides whether on certain criteria a person is unfit. For example, a person’s mental processes may be so disordered during an acute psychotic phase of a mental illness, such as paranoid schizophrenia, that they are unable to give their lawyer instructions or follow what is happening during a criminal trial. A person who is ‘unfit’ doesn’t go to a usual criminal trial. Instead, there is a special hearing of the evidence in court and a jury decides whether they committed the offence.
- During a criminal trial or a special hearing, a person can raise the defence of mental impairment if they were mentally impaired at the time of the offence.
- The fundamental test is that the person did not know what they were doing, or did not know that what they were doing was wrong. An example of a case involving the defence of mental impairment is a person who committed an offence and who, because of a life-long intellectual disability, suffers from significant frontal lobe dysfunction that affects his capacity to control his behaviour and regulate his impulses.
- If a person is found ‘not guilty because of mental impairment’, this is a finding that they are not criminally responsible for the offence.
- A jury usually decides if someone if not guilty because of mental impairment. In some circumstances a judge can decide.
- ‘Mental impairment’ is not defined in the Act, but is defined in case law as a ‘disease of the mind’. This may include mental illness, intellectual disability and other cognitive impairments, such as brain injuries. (NOT alcohol/drug induced states)
- The CMIA aims to balance the safety of the community and the rights of victims with the rights of people who are subject to the CMIA. It was introduced to replace the previous ‘Governor’s pleasure’ regime under which people were detained on indefinite orders with little review of their cases.
- Besides unfitness to stand trial and the mental impairment defence, the CMIA also applies to supervision and review of people who are subject to the Act. This can mean indefinite supervision orders, in custody or in the community, with review and leave of absence orders to help people transition back into the community once they no longer pose a risk.
What was the Comission's task?
The Victorian Law Reform Commission has been asked by the Attorney General of Victoria, the Hon. Robert Clark to conduct a review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA).
The VLRC is reviewing the CMIA after 15 years of operation, to assess how well it is working, whether it is doing what it is supposed to do and whether there need to be changes to improve it.
The CMIA governs what happens when a person is charged with a crime and had a mental impairment at the time of the offence, or has disordered or impaired mental processes at the time of the trial.
Our recommendations will balance the interests and safety of the community, including victims and their families, and the interests and rights of people who are unfit to stand trial or are mentally impaired and subject to the CMIA.
This review is NOT considering whether to get rid of the CMIA.
What were the issues?
The review will focus on specific issues set out in our terms of reference.
- The defence of mental impairment
- Should mental impairment be defined by the CMIA, and if so how? (Currently, the common law definition is ‘disease of the mind’)
- How can the law clarify mental impairment, to make it easier for juries to make decisions about the defence of mental impairment?
- Unfitness to stand trial
- Can the process for determining unfitness to stand trial be improved?
- Extending the powers of the Magistrates’ Court
- Should the Magistrates’ Court be able to decide that someone is unfit to stand trial? (At present a jury is required – there are no juries in the Magistrates’ Court).
- Should the Magistrates’ Court have the power to place people on supervision orders? (Currently the Magistrates’ Court has to discharge those found not guilty because of mental impairment).
- Should any extension of the powers of the Magistrates’ Court apply to all offences or be limited to indictable offences triable summarily?
- Supervision and review
- What happens to people under the CMIA who receive custodial and non-custodial supervision orders and how does the system work?
- Who is involved in supervision and review, and how can people with an interest be represented?
- The defence of mental impairment