The report [PDF] considers legal and procedural issues in the application of the CMIA across all levels of criminal courts in Victoria and across criminal justice, mental health and disability sectors -
Part I—Introduction and systemic improvements to the CMIA—provides an overview of the CMIA and identifies the issues that affect its operation in a systemic way.
Part II—Legal concepts and criteria—examines the unfitness to stand trial criteria and the test for the defence of mental impairment, including how mental impairment is defined.
Part III—Application of the CMIA in Victorian courts—examines: • the limited application of the CMIA in the Magistrates’ Court and Children’s Court in Victoria • the involvement of the jury in hearings under the CMIA in the Supreme Court and County Court in Victoria and directions to the jury when unfitness to stand trial and the defence of mental impairment are raised • how the rights and interests of the community and of people who are directly affected by the CMIA are taken into account in CMIA cases • the court-hearing process and the effect of the findings that can be made under the CMIA.
Part IV—Management, supervision and release under the CMIA—considers the: • framework governing the imposition and review of supervision orders and leave under supervision orders • management of people subject to supervision orders.It follows recommendations in 2013 by 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.
In summary
What area of the law is governed by the CMIA?
The CMIA governs a specific area of the criminal law where a person has been charged with an offence and one or both of the following circumstances exist: • at the time the person appears in court for the charge their mental processes are so disordered or impaired, they are ‘unfit to stand trial’ • at the time the alleged offence occurred the person was suffering from a ‘mental impairment’ which negates criminal responsibility for their actions. In such circumstances there is a legitimate basis for exempting the person from the usual criminal process and diverting them to a specialised criminal process contained in the CMIA. This exemption is based on fundamental criminal law principles, long established under Victorian law, that intersect with a number of other areas of the law, including mental health, disability and human rights law. The CMIA operates largely in the criminal justice system but it draws on areas of forensic clinical practice, including psychiatry, psychology, neuropsychology and neurology.
The current CMIA system
The CMIA was introduced in 1997 and commenced full operation on 18 April 1998. The report documents the fundamental problems with the previous ‘Governor’s pleasure’ regime that were addressed by the introduction of the CMIA, providing a fairer, more transparent and balanced approach in this area of the law.
There has been no complete review of the CMIA since it was introduced in 1997, 17 years ago. Discrete aspects of the CMIA have been examined previously. For example, the Victorian Parliament Law Reform Committee’s Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers was completed in 2013. However, the Commission’s reference is the first full-scale review of the operation of this important legislation.
Improving the systemic operation of the CMIA
In conducting the review, the Commission has mapped out the operation of the CMIA using key findings from available quantitative data, submissions and consultations. The Commission identifies the threshold issues that have a system-wide effect on the provisions in practice. Chapter 2 contains these findings and 14 threshold recommendations to change the systemic operation of the CMIA.
Mapping the operation of the CMIA—key findings
CMIA cases are relatively infrequent compared with non-CMIA cases—representing approximately one per cent of criminal cases in a year in the higher courts. They are, therefore, the exception rather than the norm within the criminal justice system. However, due to gaps in available data, this may not reflect a complete picture of the CMIA’s operation. When such cases arise, they are of especial significance to the parties, people affected, in particular victims and their families, and the community.
The report identifies the key gaps in the data available on the operation of the CMIA and makes two recommendations for Victorian courts and Victoria Police to make changes to the way that data is recorded in matters under the CMIA.
The CMIA in the higher courts
The CMIA currently largely applies in the higher courts—the Supreme Court and the County Court. There were 159 cases determined under the CMIA in the Supreme Court and County Court from 2000–01 to 2011–12, with a small but gradual increase in the number of cases per year. Seven in 10 cases were heard in the County Court.
The vast majority of these cases involved adult male accused. Eleven people who proceeded under the CMIA in the higher courts were aged under 21 years at the time an order under the Act was made.
The most common principal offence in CMIA cases was intentionally causing serious injury (21.4 per cent), followed by murder (15.7 per cent), attempted murder (8.8 per cent) and indecent act with a child under 16 years (7.5 per cent).
Over the 12-year period, very few orders were made to unconditionally release the person after a CMIA finding (only 10 in total). Almost two-thirds of people (64.2 per cent, 102) were made subject to non-custodial supervision orders and custodial supervision orders were imposed for 29.6 per cent (47).
An observed trend in CMIA cases involving the defence of mental impairment is that they tend to involve accused with a significant mental illness and comprise the most serious offences of violence, such as murder and attempted murder, against a family member or close acquaintance. However, there is evidence to suggest that it is becoming more common for CMIA cases to involve less serious or non-violent offences, which are more likely to result in non-custodial supervision orders. Less information is available about people with an intellectual disability or other cognitive impairment who come under the CMIA, although the Commission’s research suggests that such cases are different to the ‘typical’ CMIA case. Such cases often involve people charged with sexual offences and who are unfit to stand trial due to a severe intellectual disability or, in cases involving historical sexual offences, dementia.
At 30 June 2013, there were 154 people with a mental illness subject to supervision by the Victorian Institute of Forensic Mental Health (Forensicare), and there were 30 people with an intellectual disability supervised by the Department of Human Services.
The CMIA in the Magistrates’ Court and Children’s Court
The CMIA currently has limited application in the Magistrates’ Court and the Children’s Court. There is a lack of quantitative data about how the CMIA operates in relation to young people and in the summary courts of jurisdiction. The report documents the Commission’s finding that the requirement for unfitness to stand trial to be determined in a higher court, usually the County Court, affects the extent to which such issues are raised by young and adult accused. There are no formal recording practices on how often matters in the Magistrates’ Court and Children’s Court are withdrawn by police prosecutors due to issues of unfitness or the defence of mental impairment. The report discusses known cases under the CMIA involving young people, charged with offences as children, where issues of unfitness or the defence of mental impairment were raised, almost all of which involved issues of unfitness due to intellectual disability or developmental issues. Four young people were made subject to supervision in non-custodial settings, all of whom were under 18 years at the time of offending but over 18 years when they became subject to supervision.
What works well and where is change required?
The Commission reports that the CMIA is a significant improvement on the Governor’s pleasure regime and has achieved many of its intended objectives. The expertise and experience of a core group of experts and the commitment and dedication by judges, prosecutors and defence practitioners who work under the regime are fundamental elements in the CMIA’s successful operation.
However, in addition to the particular issues specified in the terms of reference and supplementary terms of reference, the report identifies several key issues where a holistic approach is required to effect change, addressed through the threshold recommendations in Chapter 2.
A set of statutory principles to guide decision making
The principles that underlie the CMIA, identified in Chapter 2, form the principal framework for the Commission’s review and the recommendations in this report.
Broadly speaking, the CMIA seeks to strike a balance between the protection of the community and the rights and clinical or support needs of people subject to the legislation. The Commission considers that the following principles ought to be given explicit expression through the addition of a set of statutory principles that apply to decision makers under the CMIA in cases involving adults and young people: • community protection • least restriction • conducting proceedings involving an accused who was a child at the time of the alleged offence in accordance with specialised principles that apply in the Children’s Court • conducting proceedings to acknowledge support needs and involve individuals directly affected • recognising all people under the CMIA affected by an offence.
The Commission recommends an additional set of statutory principles drawn from those in the Children, Youth and Families Act 2005 (Vic) for decision makers under the CMIA as it applies to young people to reflect: • recovery and therapeutic-focussed criminal law principles • best interest principles and decision-making principles derived from family law.
A statutory principle and measures to address unreasonable delay
The Commission acknowledges the significant concerns expressed in submissions and consultations regarding delay in the operation of the CMIA. Delay has a particular impact on vulnerable people involved in CMIA proceedings, including accused with mental conditions and victims of crime. The report notes the particularly deleterious effect of delays on young people.
A statutory principle
Delay is an important consideration in the administration of criminal justice. The right to be tried without unreasonable delay is included in the minimum guarantees in the Charter of Human Rights and Responsibilities Act 2006 (Vic). The significance of this right is such that the Commission considers that a statutory principle ought to apply to reflect that unreasonable delay is to be avoided and CMIA matters prioritised where the accused was a child at the time of the alleged offences, where unreasonable delay would be inconsistent with the accused’s rights, and to support therapeutic outcomes for the accused, victims and family members.
Addressing the factors linked with unreasonable delay
The Commission identifies that a key factor contributing to delay is the currently limited powers under the CMIA in the Magistrates’ Court and Children’s Court to respond when issues of unfitness or the defence of mental impairment are raised. There can be unreasonable delays when matters involving adults charged with indictable offences triable summarily are required to be transferred to the County Court when they could have been dealt with in the summary jurisdiction. There can be unreasonable delays due to the transfer of matters involving young people charged with indictable offences to the County Court rather than being dealt with in the specialised Children’s Court jurisdiction. The Commission accordingly recommends the application of the CMIA be extended in the Magistrates’ Court and the Children’s Court to remove this jurisdictional barrier. The Commission also identifies the court processes where changes could be made to avoid unreasonable delay—in the listing practices of courts and in the delivery of judgments—and recommends that Victorian courts consider current approaches to listing matters under the CMIA, and possible new listing practices.
Education, training and awareness
People who work under the CMIA, such as judges, prosecutors and defence practitioners, play an important role in how its provisions operate in practice.
The Commission agrees with the Victorian Parliament Law Reform Committee’s recommendations for professional development for judicial officers and legal practitioners in this area. It is critical that those who are involved in acting on behalf of clients, prosecuting matters and presiding over cases have awareness, understanding and expertise when cases involve accused with a mental illness, intellectual disability or other cognitive impairment.
There will also be a need for professional development if the CMIA’s operation is further extended in the Magistrates’ Court and Children’s Court as the Commission has recommended. The Commission makes four recommendations for training and education requirements for Victoria Legal Aid lawyers, practice information to provide guidance to defence practitioners, prosecutorial guidelines, education and training for police prosecutors, and judicial education for judicial officers.
Linkages, capacity enhancements and information sharing
The CMIA operates across several government departments, all criminal courts and mental health and disability services sectors. This can make it difficult for a person who is subject to the CMIA to receive a connected pathway through the system. The report acknowledges the initiatives that have helped to improve linkages in this area; however, the Commission identifies that further change in this area is required for the CMIA to operate more effectively and makes recommendations in Chapters 5, 10 and 11 to achieve this.
Reframing the test for unfitness to stand trial
Unfitness to stand trial refers to the law that exempts an accused from a standard criminal trial, sometimes temporarily, because at the time of the trial they cannot understand or participate in proceedings. The fundamental right of an accused to have a fair criminal hearing underpins this law.
An accused is presumed to be fit to stand trial. If a question of unfitness arises, the CMIA sets out the procedure and the legal test that apply in investigating whether an accused is unfit to stand trial. The test for unfitness centres on whether the accused’s mental processes are so disordered or impaired that they are, or at some time during the trial for a charge will be, unable to understand or do certain things required of an accused in order to participate in a hearing. These are constituted by six criteria, set out in the CMIA and derived from the common law (known as the ‘Presser criteria’).
In Chapter 3, the Commission considers whether the law for determining unfitness to stand trial can be improved.
The basis for the test
In doing so, the Commission evaluates the basis for the test and whether it should retain its focus on the core elements of what constitutes unfitness through the use of specific criteria, or should adopt a new focus on the accused’s decision-making capacity or effectiveness of any participation. The Commission’s view is that it is only fair to subject an accused to the trial process where they are able to make the crucial decisions relevant to their trial. The best way to ensure that the test takes these into account is to retain the current test, but to reframe it by refining and supplementing the current criteria. This approach preserves the basic competencies essential for a fair trial that may be excluded by a general test that focuses on decision-making capacity or effective participation.
The Commission also recommends that the unfitness test should be adapted so that it may apply in the Magistrates’ Court and Children’s Court and take into account the developmental stage of young accused.
Changes to the way the test operates
The Commission’s view is that unfitness to stand trial is not a ‘black and white’ issue, but is decision-specific, time-specific and support-dependent. The law should accommodate the varying abilities, choices and needs of accused who may be unfit to stand trial to the maximum extent appropriate.
The Commission makes a number of further recommendations to change the way the test operates, including: • A departure from the current test for unfitness to allow an accused’s decision to plead guilty to be given effect in some circumstances. • Measures to ensure that, once an accused has been found unfit, the adjournment period is better used to optimise their ability to become fit prior to a determination of permanent unfitness. • Approaches that require the law to do more to consider and provide the support needed by an accused with a mental illness, intellectual disability or other cognitive impairment to optimise their fitness, where such measures would assist them to understand and participate in their trial.
The Commission also makes recommendations to improve the rigour with which the test is applied in expert assessments of unfitness.
Clarifying the law on the defence of mental impairment
The principles underpinning the defence of mental impairment have existed in the law for centuries. They are that: • a person should not be punished for an offence if they are not criminally responsible for the conduct because of a mental impairment • the community must be protected from the risk posed by people because of their mental impairment.
The CMIA sets out the test that must be satisfied to establish the defence of mental impairment, retaining the law as it was under the common law defence of insanity, and substituting the outdated term of ‘insanity’ with ‘mental impairment’. The test requires that at the time of engaging in conduct (acts or omissions) constituting an offence, a person had a mental impairment that had the effect that they did not know the nature and quality of what they were doing, or that they did not know that what they were doing was wrong.
The need for a statutory definition of mental impairment
The CMIA does not define the term ‘mental impairment’—the meaning is derived from the common law notion of a ‘disease of the mind’.
In Chapter 4, the Commission considers whether a definition of mental impairment should be added to the CMIA or whether it should continue to be undefined in the Act. The Commission agrees with the strong support in submissions and consultations that there is need for a statutory definition to clarify the current uncertainty in this area of the law. The Commission recommends that the CMIA define a mental impairment as ‘a condition that includes but is not limited to mental illness, intellectual disability and cognitive impairment’. The Commission considers that this should include conditions that result from the ingestion of substances, but only if those conditions exist independently of the effect of the substance on the person. The Commission’s view is that if a person is suffering from an ongoing mental condition to the significant extent required by the test, the original source of that condition should not exclude the availability of the defence.
Conditions that are the temporary effects of the ingestion of substances, such as intoxication, should not be included, on public policy grounds.
Clarifying the test for the defence
The Commission also considers that the second aspect of the test—relating to the accused’s knowledge of whether the conduct is wrong—requires clarification. The Commission recommends a change to the legal meaning of this to focus on the accused’s capacity to think rationally, rather than the accused’s ability to ‘reason with a moderate degree of sense and composure’.
Application of the CMIA in the Magistrates’ Court
The Magistrates’ Court does not have the power to determine unfitness to stand trial. If a person charged with an indictable offence raises the issue of unfitness to stand trial, the matter must be transferred to a higher court, usually the County Court, to determine the matter. The Magistrates’ Court can consider the defence of mental impairment in determining the criminal responsibility of an accused charged with an offence within its jurisdiction. However, the only outcome that can be imposed is to discharge the person with no conditions for supervision, support or treatment.
A gap in the CMIA’s operation
The limited application of the CMIA in the Magistrates’ Court results in a gap that prevents the CMIA from operating justly, effectively and consistently with its underlying principles. The Commission finds that the lack of powers in the summary jurisdiction to determine unfitness to stand trial results, through no fault of the judiciary, in a lack of judicial oversight, a lack of outcome in terms of community protection and treatment, unfairness to the accused, and artificial decision making by the parties. The Commission also finds that the restriction in the CMIA provisions—that issues of unfitness to stand trial can only be determined in the higher courts— contributes to delay in matters involving indictable offences triable summarily that could otherwise be dealt with in the summary jurisdiction but are required to proceed by way of committal and transfer to a higher court.
Legislative framework for extending jurisdiction
Following its recommendation in Chapter 2 to extend the application of the CMIA in the Magistrates’ Court, in Chapter 5 the Commission provides a legislative framework for such an extension.
The framework is designed to suit the specific operation of the Magistrates’ Court and provide a flexible but rigorous approach appropriate to the nature of CMIA cases suitable to be determined summarily.
The Commission recommends that magistrates be provided with the power to: • determine unfitness to stand trial and the criminal responsibility of unfit accused • discharge a person at any time after determining there is a ‘real and substantial question of unfitness’, if certain criteria are fulfilled • make two-year supervision orders following a finding relating to unfitness and/or not guilty because of mental impairment (with liberty to apply for a review of the order rather than mandated reviews).
Work commissioned by the Commission and conducted by consultants at the University of Melbourne estimates significant cost savings in court hearings under the CMIA if these recommendations are implemented. Chapter 5 details the cost implications under the current and proposed models of the CMIA in the Magistrates’ Court.
A specialised approach to the application of the CMIA in the Children’s Court
The CMIA currently operates in the same limited way in the Children’s Court as it does in the Magistrates’ Court. The need for a specialised approach to address the gap The Commission makes similar findings to those in relation to the Magistrates’ Court regarding how the lack of powers results in the unjust and ineffective operation of the CMIA, which is inconsistent with its underlying principles. The Commission documents the particular concerns expressed in submissions and consultations regarding the effect of the limited jurisdiction on young people and the need for a specialised approach in this area.
A specialised approach is required to remedy the gap in the application of the CMIA in the Children’s Court and to provide an appropriate response to young accused under the CMIA who face multiple layers of vulnerability, including mental conditions, development issues and trauma in connection with offending behaviour.
Special features of the legislative framework for extending jurisdiction
In Chapter 6, the Commission makes recommendations to provide a legislative framework for the operation of the CMIA in the Children’s Court via the creation of specialised provisions in the Children, Youth and Families Act 2005 (Vic).
The framework is based on that recommended for the Magistrates’ Court and provides similar powers in relation to determining unfitness, determining criminal responsibility and making orders. However, it has special features designed to maximise early intervention, uphold the rights of young people and ensure protection of the community, including: • a presumption in favour of diversion and community options if the issue of unfitness and/or the defence of mental impairment are raised • the creation of an ‘assessment order’ that allows a young person to be assessed for unfitness as well as their suitability for voluntary diversion to a case worker program • the creation of two-year therapeutic supervision orders with built-in six-month review periods • the establishment of a youth forensic facility underpinned by a multi-disciplinary model of care.
The Commission’s view is that the extension of the CMIA’s application in the Children’s Court should not occur without the establishment of a youth forensic facility. Such a facility is necessary to provide a secure and therapeutic environment—which currently does not exist in Victoria—to conduct assessments, undertake treatment, and provide services to optimise fitness and protect the community through secure supervision of young people on therapeutic supervision orders. Work commissioned by the Commission and conducted by consultants at the University of Melbourne estimates significant cost savings in court hearings under the current and proposed models in the Children’s Court, set out in Chapter 6. However, this must be balanced with the cost implications of the Commission’s recommendations to establish new programs and facilities to support the proposed model.
Juries under the CMIA in the higher courts
Juries are a central part of criminal proceedings in Victoria and are currently involved in a number of the CMIA processes in the higher courts, considered by the Commission in Chapter 7.
Jury involvement in CMIA proceedings
Juries are required to decide whether a person is unfit to stand trial and whether a person is not guilty because of mental impairment in the higher courts. The CMIA currently contains an exception to the requirement for a jury to determine the defence of mental impairment when there is agreement between the prosecution and defence regarding the proposed evidence in the case. In such cases, it is possible for a judge to hear the evidence and make a determination of criminal responsibility, in place of the jury. The Commission considers changes to the jury’s involvement in determining whether a person is unfit to stand trial and the criminal responsibility of people who are unfit and/or who have raised the defence of mental impairment.
Should a jury determine unfitness to stand trial?
Unfitness to stand trial is a pre-trial issue. Consistent with the fact that the role of the jury in non-CMIA matters has, over time, become limited to determining criminal responsibility, the Commission’s view is that the jury should no longer determine whether a person is unfit to stand trial.
The Commission recommends that a judge or magistrate determine investigations of unfitness under the CMIA.
Should a jury determine criminal responsibility?
In the Commission’s view, a jury should determine criminal responsibility in all CMIA cases, for accused who are fit and unfit to stand trial.
The jury’s involvement ensures public examination of criminal responsibility, for the benefit of the accused, victims and the community. The involvement of the jury requires presentation of the evidence and issues in a case in a way that is comprehensible. Exposure of this kind serves an important public and also educative function. These principles outweigh the support received in submissions and consultations for the current CMIA provision allowing a judge to determine criminal responsibility if the prosecution and defence agree that the proposed evidence is capable of establishing the defence of mental impairment. The Commission accordingly recommends that the provision be removed and the jury restored as the decision maker in all determinations of criminal responsibility under the CMIA.
Directions to the jury
Jury involvement in proceedings gives rise to the obligation on judges to direct the jury about the law to assist the jury in reaching a decision on the question of fact before it. Particular focus has been given to the approach to directing the jury on the elements of an offence when the defence of mental impairment is in issue. The Commission considers the approaches currently used and the issues associated with each approach. The Commission considers that there is a need to clarify and simplify the law by providing legislative guidance.
The Commission recommends a new approach that provides a level of prescription with flexible characteristics to ensure that it can be applied to address the different circumstances that arise in cases where the defence of mental impairment is raised. The approach seeks to balance two principles: that an accused with a mental condition should be subject to equal criminal standards and the same opportunity for acquittal as those without a mental condition; and that for people who have a mental impairment that is such that it renders them not responsible for harmful actions, there is a need to protect the community from further conduct through supervision and treatment.
Rights and interests under the CMIA
The CMIA seeks to ensure there is protection of the rights, and representation and consideration of the interests, of a range of individuals directly affected by the legislation, as well as the community as a whole. The Commission considers that the rights of victims are central to the CMIA process. Chapter 8 contains the Commission’s recommendations regarding changes to the provisions that govern the representation and consideration of the various interests involved in the CMIA.
Victims, victims’ families and family members
The Commission considers issues related to the support available to victims, victims’ families and family members throughout the CMIA court process, the notification and court report system and the need for acknowledgment that the conduct comprising an offence has occurred. This is framed with particular regard to the nature of the CMIA cases—which often involve victims who are also family members of the accused—and the different nature and outcomes of CMIA proceedings that provide an additional layer of complexity for victims of crime in negotiating the criminal justice process. The Commission makes recommendations to enhance victim support, improve victim notification processes and promote meaningful and appropriate sharing of information with victims.
Advocacy for supervised people
The Commission considers issues relating to advocacy for people subject to supervision orders, including the right to legal representation and independent advocacy. The Commission recommends a gap analysis be undertaken of the advocacy services for people who are subject to the CMIA to improve the accessibility of such services.
Representing the community’s interests
The Commission considers the range of parties who represent the interests involved in hearings to review, vary and revoke supervision orders. The Commission’s conclusion is that the roles of the parties under the CMIA should be re-framed so that the Director of Public Prosecutions represents the interests of the community, including victims and their families. Suppression orders The Commission considers issues regarding the balance between the principles of open justice and the successful reintegration of people subject to the CMIA into the community. Recommendations are made to introduce a statutory principle to recognise the importance of suppression orders for long-term recovery and successful reintegration of people into the community.
Processes and findings under the CMIA in all courts
The CMIA sets out the law and process for determining whether an accused is unfit to stand trial. It also sets out the process for determining the criminal responsibility of people found unfit and for people who are fit to stand trial who raise the defence of mental impairment. In Chapter 9, the Commission reviews the law that governs the processes and findings under the CMIA and makes recommendations to improve their operation in all courts where the CMIA applies. The Commission makes recommendations to: • resolve a number of procedural anomalies in the way that information is provided to the court following findings • ensure that the participation of the accused in proceedings that affect them is maximised by the provision of in-court support and ensuring that CMIA processes operate in line with its therapeutic focus • rename CMIA findings to better reflect the outcome of CMIA proceedings and thus provide transparency and recognise the interests of victims • streamline existing processes that result in the replication of information or procedures • provide an approach for the review of ancillary orders and consequences that follow CMIA findings • ensure that appropriate opportunities for appeal are provided against all CMIA findings.
Improving the supervision, review and leave framework in the higher courts
The CMIA sets out the law and process for determining how long and under what conditions a person found unfit to stand trial or not guilty because of mental impairment should be detained, supervised and provided with treatment or support. The CMIA provides a comprehensive decision-making framework that contemplates the gradual progression of a person under supervision with staggered reductions in the level of supervision commensurate with the safety of the community. Current framework
If a person becomes subject to a CMIA finding, the court must decide whether the person is to be unconditionally released or declared liable to supervision. If declared liable for supervision, the court must then impose a supervision order—either custodial or non-custodial—for an indefinite period, irrespective of the particular offence. The court must impose a nominal term for the order, in accordance with a framework set out in the CMIA that corresponds to the maximum penalty for the offence. The nominal term prescribes the minimum time before a ‘major review’ of the order must occur. At a major review, the court considers whether to release a person or reduce or continue the degree of supervision once the nominal term has expired. The CMIA provides for a process and criteria for the review, variation and revocation of supervision orders. It also provides for a comprehensive system of reports to ensure that supervised people have regular reviews and are not ‘lost’ in the system.
In addition to the courts, another key decision maker under this framework is the Forensic Leave Panel—an independent body established by the CMIA to introduce transparency and accessibility into the leave system. The Forensic Leave Panel makes the majority of decisions regarding a person’s ability to take leave of absence while under a supervision order, but the court makes decisions regarding extended leave (periods of up to 12 months).
The need for a refined framework
The Commission has reviewed these aspects of the decision-making framework and has considered whether they operate consistently with the CMIA’s principles, as well as justly and effectively. While the Commission acknowledges that the current framework constitutes a vast improvement on the previous Governor’s pleasure regime for supervision, this report identifies a number of areas where, in the Commission’s view, further improvements can be made. The Commission makes recommendations that aim to ensure that, where it is safe to do so, the level of restriction on the liberty of people subject to supervision orders is reduced. The implementation of a refined supervision, review and leave framework, set out in Chapter 10, will ensure that this occurs in appropriate circumstances.
Improving transparency and clarity in decision making
Transparency and accountability are key principles that run through the CMIA. CMIA processes should promote procedural fairness and open and transparent decision making. Leave is an important part of a person’s recovery under the CMIA—the conduct of the process and decisions have a significant impact on people who are subject to supervision orders. The Commission makes recommendations to improve transparency in the communication of reasons for decisions by the Forensic Leave Panel, and recommends a review of the Internal Leave Review Committee that functions as part of the leave process for forensic patients.
Ensuring the framework operates to achieve community protection and least restriction
A significant focus of the report is to consider whether the supervision framework operates consistently with the key principles of community protection and least restriction. The Commission recommends the retention of indefinite supervision orders in the higher courts. They are consistent with the therapeutic—not punitive—focus of the CMIA. The duration of an order should be based on the time required to ensure protection of the community and the recovery and progression of a person along a process of gradual reintegration. An indefinite order allows the risk assessment to occur throughout the period of supervision, rather than at the time the order is made.
The Commission has concluded that rather than making changes to the length of supervision orders, reforms should be targeted at ensuring the decision-making framework is rigorous once an indefinite order has been made. The framework should ensure that the period of supervision closely reflects the minimum period necessary to address the person’s risk to the community. The Commission considers that there is a need for more transparency in the framework that governs the timing of reviews of supervision orders. The report identifies that the current nominal term framework is confusing and unclear to people who have professional and personal experience with the CMIA, and raises unfair and inaccurate expectations in the community.
Further, and more significantly, the Commission has formed the view that the nominal term system is an inappropriate way of setting review periods with respect to the seriousness of the offence. It rarely reflects the actual period of supervision required in practice in each particular case, which varies vastly according to the individual circumstances.
Replacement of nominal term system with a new system of ‘progress reviews’ for indefinite supervision orders
The Commission recommends the introduction of a new system of five-year ‘progress reviews’ to replace the nominal term system. This would ensure that the review of orders and duration of supervision are more explicitly linked to the actual decrease or increase in the risk posed by the person and any improvements or decline in the person’s progress or recovery. This is so that, consistent with the principle of least restriction, the point at which a person’s supervision should be reduced can be monitored and identified more accurately, and protects against arbitrary detention. This change will clarify and promote transparency in this area of the law. Under this system, the implications of a supervision order will be clear to professionals who work under the CMIA, supervised people and their family members, victims of crime and their families, and the community.
The Commission also recommends a modified set of presumptions that are to apply to the court’s consideration at each five-year progress review.
Responsibility for decision making
Importantly, the Commission recommends that the responsibility for decision making should remain the same, whereby the criminal courts make decisions as to whether a person should be supervised, the type of supervision order and any conditions, the review, variation and revocation of supervision orders and extended leave. The Commission does not recommend changes to the types of decisions made by the Forensic Leave Panel. The Commission considers, however, that improvements are required to the continuity of decision making between the two bodies and makes a number of recommendations to ensure that a lack of information does not stall a person’s progress through the leave system.
Improvements to the factors relevant to decision making
The Commission has also considered the factors that are relevant to decision making by the court and the Forensic Leave Panel. The Commission makes recommendations to improve consistency in the factors that apply across different decision-making processes.
The Commission recommends changes to the tests for ‘endangerment’ that are applied to make the CMIA more consistent with modern risk assessment principles based on ‘unacceptable risk’ and removal of the risk posed by a person to themselves as a relevant factor in the test. The Commission also considers the relationship between the CMIA and orders under the civil mental health and disability systems, and makes a recommendation to enhance the links between these systems and the CMIA.
The effects of the Commission’s recommendations on the factors guiding decision making in relation to supervision, review, release and leave decisions under the CMIA in each court jurisdiction are demonstrated in Appendix G, which sets out the new relevant provisions if the Commission’s recommendations were to be implemented.
Management of people subject to supervision orders
Once a person has been placed on a supervision order, the responsibility for the supervision of that person is designated according to the place of custody or services received.
Forensicare, a statutory agency in the Department of Health, is responsible for supervising people who are in custody, or receiving services from, an approved mental health service. A person on a custodial supervision order is detained in Thomas Embling Hospital, Victoria’s only secure mental health hospital. A person on a non-custodial supervision order is managed by an area mental health service, overseen by the community arm of Forensicare.
The Secretary to the Department of Human Services is responsible for people who are in custody in a residential treatment facility or a residential institution (on a custodial supervision order) or receiving services from a disability service provider (on a non-custodial supervision order). The management of people subject to supervision orders is governed by the CMIA in conjunction with the relevant mental health or disability legislation.
Barriers to effective management and supervision
The Commission’s review identified a number of barriers to the effective management and supervision of people subject to supervision orders. The Commission makes recommendations for change where such barriers, in its view, result in artificial decision making in managing and supervising people on orders or cause the CMIA to operate in a manner that is unjust, ineffective and inconsistent with its underlying principles.
The Commission considers that effective supervision for people with an intellectual disability or other cognitive impairment subject to the CMIA is often limited by a lack of appropriate accommodation. The Commission recommends that the Department of Human Services commission a review of current forensic disability services to identify appropriate models of care and the accommodation needs for this group of people subject to the CMIA.
The Commission identifies that a lack of flexibility affects the operation of the CMIA provisions for the management of people with a mental illness. The Commission recommends changes to the provisions governing breaches of supervision orders and the establishment of a medium-secure facility as an approved mental health service under the CMIA to provide an intermediate step between the high-secure facility of Thomas Embling Hospital and community accommodation.
A new approach for people with an intellectual disability or other cognitive impairment
In response to the significant concerns raised in submissions and consultations, the report specifically examines the suitability of the model of supervision for people who are subject to the CMIA who have an intellectual disability or other cognitive impairment, such as an acquired brain injury.
A consistent feature of submissions and consultations was that changes are needed to ensure that the legislative framework for supervision and management created by the CMIA and the Disability Act 2006 (Vic) operates in a manner that is appropriate for this group, consistent with the CMIA’s underpinning principles.
The Commission makes four recommendations for legislative change to ensure that there is a mandated treatment pathway and legislated clinical oversight for people with an intellectual disability or other cognitive impairment. These recommendations seek to introduce more safeguards and facilitate a ‘person-centred’ approach to managing such vulnerable people, to ensure they are not at risk of unequal treatment before the law.
