VLRC Mental Impairment Act recommendations

The Victorian Law Reform Commission report on the Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 noted on the preceding post features the following recommendations

Improving the systemic operation of the CMIA - Addressing gaps in data on the operation of the CMIA

1 All courts in Victoria should make changes to their recording practices for criminal cases to ensure that issues, findings and outcomes in relation to unfitness to stand trial and the defence of mental impairment under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) are recorded and are capable of being analysed in a consistent way.

2 Victoria Police should make changes to the procedure for recording withdrawals due to issues of unfitness to stand trial or the defence of mental impairment to ensure more accurate measurement of the matters which do not proceed under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

General statutory principles

3 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and the Children, Youth and Families Act 2005 (Vic) should be amended so that all relevant powers and functions under these Acts are exercised consistently with the following statutory principles: (a) proceedings should be conducted and, where appropriate and consistent with the rights of the accused, modified in a way that acknowledges the need for support and involves the people affected by the proceedings, including the accused, a family member or a victim of the offence (b) proceedings involving an accused who was a child at the time of the alleged offence should as far as possible be conducted in accordance with the specialised principles that apply to an accused in the Children’s Court (c) the need to protect the community (d) the need to recognise all people affected by an offence, including the accused, a family member or a victim of the offence, and (e) the principle of least restriction, that is that restrictions on a person’s freedom and personal autonomy must be kept to the minimum consistent with the safety of the community.

Statutory principles—a specialist approach to young people

4 The following additional statutory principles should be added to the Children, Youth and Families Act 2005 (Vic) to apply to all matters in the Children’s Court where unfitness or the defence of mental impairment is raised: (a) the need to strengthen and preserve the relationship between the child and the child’s family (b) the desirability of allowing the child to live at home (c) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance, and (d) the need to minimise stigma to the child resulting from a court determination.

5 Part 1.3 of the Children, Youth and Families Act 2005 (Vic) should be amended to provide that the best interests principles in section 10 and decision-making principles in sections 11 and 12 apply to matters in the Children’s Court where unfitness or the defence of mental impairment is raised.

A statutory principle and measures to address unreasonable delay

6 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and the Children, Youth and Families Act 2005 (Vic) should be amended to reflect the principle that unreasonable delay is to be avoided and particular consideration is to be given to prioritising matters involving unfitness to stand trial and the defence of mental impairment where: (a) the accused is a child or was a child at the time of the alleged offence (b) unreasonable delay would be inconsistent with the accused’s rights, or (c) to support therapeutic outcomes for the accused, victims and family members.

7 The jurisdiction of the Magistrates’ Court and the Children’s Court over matters involving unfitness to stand trial and the defence of mental impairment should be extended within the current respective criminal jurisdictions of each court. The extension of jurisdiction should be provided through amendments to sections 4 and 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and by the recommendations made in Chapters 5 and 6.

8 The Victorian Government should establish working groups as part of any implementation of the recommendations in Chapters 5 and 6 regarding the application of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) in the Magistrates’ Court and Children’s Court. A separate working group should be established for each court with representation from individuals and organisations with expertise in adult and youth justice, forensic mental health and forensic disability.

9 Victorian courts should consider current approaches to listing matters under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and consider how unreasonable delay can be avoided by the adoption of new listing practices at a number of key stages, including: (a) first hearing of matters after committal from the Magistrates’ Court or Children’s Court (b) investigations of unfitness to stand trial (c) special hearings following a permanent finding of unfitness to stand trial (d) matters involving children and young people, and (e) matters involving people who are not eligible to be placed in an ‘appropriate place’ within the meaning of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). Any new listing practices that are adopted should be supported by a relevant practice note or practice direction.

Education, training and awareness

10 Victoria Legal Aid should develop training and education requirements for lawyers acting in matters under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and the equivalent provisions in the Children, Youth and Families Act 2005 (Vic). These requirements should be included as a pre-condition for entry into the Victoria Legal Aid Indictable Crime Panel and equivalent panels in matters in the Magistrates’ Court and Children’s Court.

11 The Law Institute of Victoria, in collaboration with the Victorian Bar, should develop practice information to provide guidance for lawyers acting in criminal matters involving accused with a mental illness, intellectual disability or other cognitive impairment.

12 Victoria Police should: (a) develop a set of prosecutorial guidelines that are consistent with the underlying principles of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to assist police prosecutors in their prosecution of matters under the Act, and (b) provide education and training for police prosecutors on prosecuting Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) matters in the Magistrates’ Court and Children’s Court.

13 The Judicial College of Victoria should develop and deliver judicial education for judges and magistrates on: (a) any new statutory provisions and processes that are introduced under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and the Children, Youth and Families Act 2005 (Vic) (b) the best practice management of proceedings involving a person with a mental illness, intellectual disability or other cognitive impairment (c) how the needs of people with a mental illness, intellectual disability or other cognitive impairment can be identified and appropriately met, including by modifications to court procedure and the use of appropriate communication methods, and (d) information on clinical practice in the mental health and disability sectors, including the services that are available to people who may be subject to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

Review following implementation of recommendations

14 The Victorian Government should review the operation of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) 24 months after implementation of any major recommendations.

Reframing the test for unfitness to stand trial - The new test for unfitness to stand trial

15 Section 6(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide that a person is unfit to stand trial for an offence if, because the person’s mental processes are disordered or impaired, the person is or, at some time during the hearing, will be: (a) unable to understand the nature of the charge (b) unable to understand the actual significance of entering a plea to the charge (c) unable to enter a plea to the charge (d) unable to understand the nature of the hearing (that it is an inquiry as to whether the person committed the offence) (e) unable to follow the course of the hearing (f) unable to understand the substantial effect of any evidence that may be given in support of the prosecution (g) unable to decide whether to give evidence in support of his or her case (h) unable to give evidence in support of his or her case, if he or she wishes to do so, or (i) unable to communicate meaningful instructions to his or her legal practitioner. Adapting the test when the accused wishes to plead guilty

16 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide that: (a) notwithstanding Recommendation 15, a person whose mental processes are disordered or impaired may enter a guilty plea to the charge if the person is: (i) able to understand the nature of the charge (ii) able to understand the actual significance of entering a plea of guilty to the charge (that it will waive the person’s right to a hearing and the opportunity to contest the charge and the consequences in terms of conviction and sentence) (iii) able to enter a plea to the charge (iv) able to understand the nature of the hearing if a plea of not guilty is entered (that it is an inquiry as to whether the person committed the offence) (v) able to follow the course of the hearing that would follow if a plea of guilty was entered, and (vi) able to communicate meaningful instructions to his or her legal practitioner regarding the decision to plead guilty. (b) paragraph (a) does not apply if the accused is not legally represented.

Applying the test to young people

17 Section 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to add a requirement, separate to the criteria in section 6(1), that in determining whether a young person (a person who at the time of the hearing is under 21 years of age) is unfit to stand trial, the court must consider the developmental stage of that person.

Optimising fitness to stand trial—in-court support measures

18 Section 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to add a requirement, separate to the criteria in section 6(1), that in determining whether a person is unfit to stand trial, the court must consider the extent to which modifications can be made to the hearing process to assist the accused to become fit to stand trial. Modifications include: (a) whether a support person can assist the person’s understanding of the trial (b) whether more appropriate communication methods can be used in court, and (c) whether court procedure can be appropriately modified.

19 To support Recommendation 18, there should be more support measures available in the court process to enable a court to modify proceedings and to assist an accused to become fit to participate in the hearing. For example: (a) the introduction of a formal support person scheme, similar to intermediary schemes that operate in other jurisdictions, and (b) the development and use of practice notes or practice directions in the Supreme Court, County Court, Magistrates’ Court and Children’s Court to promote the use of support measures for accused with a mental illness, intellectual disability or other cognitive impairment in court.

Optimising fitness to stand trial—education

20 The Victorian Government should consider introducing an education program to enhance the ability of accused adults and accused young people to become fit to stand trial.

Optimising fitness to stand trial—treatment and services

21 The following amendments should be made to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic): (a) Section 14(2)(b) should be amended so that the judge must only proceed to hold a special hearing under Part 3 within three months if satisfied that the accused, having regard to the education, treatment and services received, is not fit to stand trial. (b) Section 13(2) should be amended so that the report on the mental condition of the accused should contain information on: (i) the education, treatment and services recommended in any report on the accused’s unfitness to stand trial to assist the accused in becoming fit to stand trial, and (ii) the education, treatment and services the accused received during the period of adjournment. (c) Section 13(3)(c) should be amended so that the judge must be satisfied that the accused, having regard to the education, treatment and services received, will not become fit to stand trial by the end of the period of 12 months after the finding of unfitness.

Assessment of unfitness by experts—processes for applying the new tests and improvements

22 The following process should be followed to support the Commission’s recommendations on unfitness to stand trial: (a) In an examination of an accused by a registered medical practitioner or a registered psychologist on whether the accused is unfit to stand trial under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), the assessment should include: (i) whether the accused is unfit to stand trial (ii) if unfit to stand trial, whether or not the accused is likely to become fit to stand trial within a particular period and any measures (education, treatment or services) that would assist the accused to become fit to stand trial, and (iii) if unfit to stand trial, the extent to which modifications can be made to the hearing process to assist the accused to become fit to stand trial. (b) If requested, the assessment should also consider whether the accused is fit to plead guilty. (c) As part of any assessment of unfitness to stand trial of a young person, the assessment should consider the developmental stage of the person. (d) Upon consideration of the assessment, the court may proceed to determine whether the accused is unfit to stand trial, having regard to the extent to which modifications can appropriately be made to the hearing process to assist the accused to become fit to stand trial. (e) If the accused is found fit to stand trial, the hearing should commence or resume in accordance with usual criminal procedures and with any appropriate modifications recommended in the assessment to assist the accused to become fit to stand trial. (f) If the accused is found unfit to stand trial, the court may adjourn the matter for a period specified under section 11(4)(b) to allow the accused to become fit to stand trial, having regard to any measures recommended (education, treatment or services) that would assist the accused to become fit to stand trial. (g) Following the period specified under section 11(4)(b) or in support of an application for an abridgment of the period under section 13 (as amended by Recommendation 21(b)), another examination of the accused by a registered medical practitioner or a registered psychologist should be conducted on the accused’s unfitness to stand trial. (h) Any request or order for an assessment on whether the accused is unfit to stand trial should specify the matters the registered medical practitioner or the registered psychologist should consider.

23 The Victorian Government should establish an expert advisory group to determine: (a) who should conduct assessments of unfitness to stand trial (b) whether the group of people identified under paragraph (a) should be registered or accredited by a professional body, and if so, the requirements for registration or accreditation (c) whether guidelines should be developed or experts should undergo training on applying the test for unfitness to stand trial, and if so, the content of the guidelines or training (d) whether assessments should be standardised to a greater extent and the extent to which these should be standardised (e) whether legislative or other requirements should be introduced to require the application of the process in Recommendation 22, and (f) how to promote better communication techniques in the conduct of assessments.

Clarifying the law on the defence of mental impairment Introducing a statutory definition of mental impairment

24 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to insert a provision in section 20 of the Act that defines a ‘mental impairment’ for the purposes of the defence as a condition that ‘includes, but is not limited to, mental illness, intellectual disability and cognitive impairment’. The proposed definition of mental impairment should not include any self-induced temporary conditions resulting from the effects of ingesting substances. The proposed definition should include self-induced conditions that exist independently of the effect of ingesting substances.

Clarifying the test for the defence

25 Section 20(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to replace ‘that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong’ with ‘that is, he or she did not have the capacity to think rationally about whether the conduct, as perceived by reasonable people, was wrong’.

Application of the defence in the Children’s Court

26 Recommendations 24 and 25 to introduce a definition of mental impairment and make changes to the second limb of the mental impairment defence in the higher courts should apply in the Children’s Court by adding equivalent provisions into the Children, Youth and Families Act 2005 (Vic).

Application of the CMIA in the Magistrates’ Court - Extending the jurisdiction of the Magistrates’ Court

27 Parts 1–6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide for the Magistrates’ Court to: (a) determine whether a person is unfit to stand trial (b) conduct special hearings after a finding of unfitness, and (c) make orders following a finding that the person is not criminally responsible because of mental impairment or that the person’s conduct has been proved on the evidence available (but the person is unfit to stand trial).

Model for determining unfitness in the Magistrates’ Court

28 New provisions should be inserted into the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to create the following process if the question of unfitness arises in a proceeding in the Magistrates’ Court for a summary offence or an indictable offence triable summarily: (a) In the Magistrates’ Court, the question of the accused’s unfitness to stand trial is to be determined on the balance of probabilities by a magistrate. (b) When the question of unfitness to stand trial is raised during the course of proceedings in the summary stream (or where summary jurisdiction has been granted), the magistrate must determine whether there is a real and substantial question as to the unfitness of the accused. (c) If the magistrate determines there is a real and substantial question as to the unfitness of the accused, the magistrate must either: (i) conduct an investigation into the unfitness of the accused to stand trial within three months from the magistrate’s determination that there is a real and substantial question as to unfitness, or (ii) make an order under paragraph (m). (d) If the magistrate finds the accused unfit to stand trial, the magistrate must either: (i) proceed to hold a special hearing of the charge within three months, or (ii) adjourn the matter under paragraph (l), or (iii) make an order under paragraph (m). (e) The special hearing should be conducted as nearly as possible as if it were a summary hearing. (f) If the magistrate finds the accused fit to stand trial before the special hearing, the proceeding should be resumed in accordance with usual criminal procedures. (g) For the purposes of paragraphs (b) and (c), if the magistrate considers that it is in the interests of justice to do so, the magistrate may order that the accused undergo an examination by a registered medical practitioner or registered psychologist and that the results of the examination be put before the court. (h) Notwithstanding paragraphs (a)–(f), if the question of the accused’s unfitness to stand trial arises in a matter in the committal stream, the committal proceeding must be completed.  (i) If the accused is committed for trial, the question of the accused’s unfitness to stand trial must be reserved for consideration by the trial judge. (j) If the accused is not committed for trial, and the matter is to be heard summarily, the question of the accused’s unfitness must be investigated by the magistrate in accordance with paragraphs (a)–(f). (k) At any time before the investigation into unfitness to stand trial, the magistrate may extend the three-month period in paragraph (c) for a further period not exceeding three months. The three-month period may be extended more than once, provided the magistrate conducts the unfitness investigation within 12 months of the determination that there is a real and substantial question as to the unfitness of the accused. (l) If the magistrate finds the accused unfit to stand trial but considers that the accused is likely to become fit within a period of 12 months, the magistrate may adjourn the matter for the period by the end of which the accused is likely to be fit to stand trial. The magistrate may extend the period of adjournment for a further period, but the total period of adjournment from the first finding of unfitness must not exceed 12 months. (m) At any time during the course of proceedings in the summary stream (or where summary jurisdiction has been granted), after the magistrate determines there is a real and substantial question as to the unfitness of the accused, and before the special hearing, the magistrate may discharge the accused with or without conditions if the magistrate considers: (i) that the accused does not pose an unacceptable risk of causing physical or psychological harm to another person or other people generally as a result of the discharge, and (ii) the accused is receiving treatment, support or services in the community.

Expanding the Mental Health Court Liaison Service (MHCLS)

29 The Mental Health Court Liaison Service (MHCLS) should be extended and this extension resourced. The extension of the service should include the provision of disability liaison services, in addition to mental health liaison services.

Providing a power to make orders in the Magistrates’ Court

30 Section 5(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide that if the Magistrates’ Court finds a person not criminally responsible because of mental impairment or that conduct has been proved on the evidence available (but the accused is unfit to stand trial), the Magistrates’ Court may: (a) declare the person liable to supervision, or (b) order that the person be released unconditionally. In deciding whether to declare the person liable to supervision or to unconditionally release the person, the Magistrates’ Court must have regard to whether the person would pose an unacceptable risk of causing physical or psychological harm to another person or other people generally.

31 The power to declare a person liable to supervision and make orders for supervision or to unconditionally release a person following a finding under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should apply to both summary offences and indictable offences triable summarily where summary jurisdiction has been granted.

32 Section 5(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide that if the Magistrates’ Court declares that a person is liable to supervision: (a) the court must make either of the following supervision orders in respect of the person: (i) a custodial supervision order, or (ii) a non-custodial supervision order; and (b) the court must set a fixed term of the supervision order of two years, at the end of which the supervision order lapses.

Review of supervision orders

33 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide: (a) The person subject to the order or the person having the custody, care, control or supervision of that person has the right to apply to the court for a variation of the order (in the case of a custodial supervision order) or a variation or revocation of the order (in the case of a non-custodial supervision order) during the term set by the Magistrates’ Court. (b) In a review conducted under paragraph (a), the court must either: (i) confirm the order (ii) vary the conditions of the order (iii) for a custodial supervision order, vary the order to a non-custodial supervision order, or (iv) for a non-custodial supervision order, vary the order to a custodial supervision order or revoke the order.

Factors relevant to decision making for supervision orders

34 Part 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), including sections 40, 41 and 42, should apply to the Magistrates’ Court’s consideration of whether to make, vary or revoke a supervision order. Granting and consenting to summary jurisdiction

35 Section 29(2) of the Criminal Procedure Act 2009 (Vic) should be amended to introduce a requirement that in deciding whether the Magistrates’ Court may hear and determine summarily a charge for an indictable offence, if there is a real and substantial question of unfitness to stand trial, the court is to have regard to the statement of principles for decision makers in Recommendation 3.

36 Section 29 of the Criminal Procedure Act 2009 (Vic) should be amended so that the Magistrates’ Court may waive the requirement that an accused consent to the summary hearing of a charge for an indictable offence if satisfied that: (a) the accused is unable to consent to a summary hearing or the legal practitioner appearing for the accused is unable to obtain instructions on whether the accused consents to a summary hearing, and (b) there is a real and substantial question of the accused’s unfitness.

Committals—criteria and process

37 Section 141 of the Criminal Procedure Act 2009 (Vic) should be amended to require that if there is a real and substantial question of unfitness to stand trial, the court is to have regard to the statement of principles for decision makers in Recommendation 3 in conducting committal proceedings.

38 If there is a real and substantial question as to the accused’s unfitness to stand trial in a committal proceeding, the committal proceeding must be completed without the accused entering a plea. The committal proceeding must otherwise be completed in accordance with Chapter 4 of the Criminal Procedure Act 2009 (Vic).

A specialised approach to the application of the CMIA in the Children’s Court - Extending the jurisdiction of the Children’s Court

39 The Children, Youth and Families Act 2005 (Vic) should be amended to provide for the Children’s Court to: (a) determine whether a young person is unfit to stand trial (b) conduct special hearings after a finding of unfitness, and (c) make orders following a finding that the young person is not criminally responsible because of mental impairment or that the young person’s conduct has been proved on the evidence available (but the young person is unfit to stand trial). The amendments should be provided for in a new part in Chapter 5 of the Children, Youth and Families Act 2005 (Vic).

40 Recommendation 39 should be implemented in conjunction with Recommendation 49 to establish a youth forensic facility in Victoria to provide for the assessment, treatment and supervision of young people in relation to unfitness to stand trial and the defence of mental impairment.

Preserving the criminal jurisdiction of the Children’s Court

41 The current criminal jurisdiction of the Children’s Court should apply, so that all summary and indictable matters currently within the jurisdiction of the Children’s Court should continue to be heard in the Children’s Court where unfitness to stand trial or the defence of mental impairment is raised.

42 Any matter over which the Children’s Court has jurisdiction where unfitness to stand trial or the defence of mental impairment is raised should be transferred to and dealt with in the Melbourne Children’s Court.

43 The exceptional circumstances criteria in section 356(3) of the Children, Youth and Families Act 2005 (Vic) should include consideration of whether a matter should remain in the Children’s Court jurisdiction where ‘there is a real and substantial question of unfitness to stand trial’.

A diversionary approach for young people

44 The Children, Youth and Families Act 2005 (Vic) should be amended to require that in matters in the Children’s Court involving young people where unfitness or the defence of mental impairment is raised there are presumptions in favour of: (a) diverting the young person from the criminal justice system, and (b) the young person’s treatment and support taking place in the community.

Model for determining unfitness in the Children’s Court

45 New provisions should be inserted into the Children, Youth and Families Act 2005 (Vic) to create the following process to apply if the question of unfitness arises in a proceeding in the Children’s Court for a summary offence or an indictable offence within the court’s jurisdiction: (a) In the Children’s Court, the question of the accused’s unfitness to stand trial is to be determined on the balance of probabilities by the President or a magistrate. (b) When the question of unfitness to stand trial is raised during the course of proceedings for an offence within the jurisdiction of the Children’s Court, the President or a magistrate must determine whether there is a real and substantial question as to the unfitness of the accused. (c) If the President or a magistrate determines that there is a real and substantial question as to the unfitness of the accused, they must either: (i) conduct an investigation into the unfitness of the accused to stand trial, without unnecessary delay and as soon as is practicably possible within three months from the determination that there is a real and substantial question as to unfitness, or (ii) make an order under paragraph (f). (d) Upon determining there is a real and substantial question of unfitness to stand trial and for the purposes of paragraphs (c) and (e), if the President or magistrate considers it is in the interests of justice to do so, they may make an ‘assessment order’ for the accused to undergo a multi-disciplinary examination by accredited clinicians, at least one of whom must be a registered medical practitioner, as to: (i) whether the accused is unfit to stand trial (ii) whether the accused is likely to become fit within a particular period and what measures (education or treatment) would assist to restore the accused’s fitness in that period, and (iii) whether the accused is suitable for a voluntary referral to a case worker for treatment, services and support. (e) Upon consideration of the assessment order, the President or a magistrate must: (i) proceed to determine unfitness (ii) adjourn the matter for a specified period to optimise the accused’s fitness (with recommended measures to optimise fitness), or (iii) adjourn the matter for a specified period for a voluntary referral to an established case worker program. (f) At any time during the course of proceedings, after the President or a magistrate determines there is a real and substantial question as to the unfitness of the accused, and before the special hearing, the President or magistrate may discharge the accused with or without conditions if they consider: (i) that the accused does not pose an unacceptable risk of causing physical or psychological harm to another person or other people generally as a result of the discharge, and (ii) the accused is receiving treatment, support or services in the community. (g) For the purposes of paragraph (e), the Children’s Court may adjourn a matter as many times as required within a 12-month period. In considering adjournments, delay to the accused should be minimised and the court should take a proactive approach to judicial management in the specialist jurisdiction of the Children’s Court. The overall period of adjournments must not exceed 12 months. (h) If the Children’s Court finds an accused fit to stand trial before the special hearing, the proceedings should be resumed in accordance with the usual criminal procedures. (i) If the Children’s Court finds a person unfit to stand trial, it must either: (i) proceed to hold a special hearing as soon as practicable within a period of three months (ii) adjourn the matter for a specified period for a voluntary referral to an established case worker program, or (iii) adjourn the matter for a referral for a Therapeutic Treatment Order. (j) A special hearing must be conducted as nearly as possible as if it were a criminal procedure in the Children’s Court, including the relevant provisions in section 16(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). (k) Notwithstanding paragraphs (a)–(j), if the question of an accused’s unfitness to stand trial arises in a matter that involves an offence that is excluded from the Children’s Court jurisdiction or in a committal proceeding, the committal proceeding must be completed. (l) If the accused is committed for trial, the question of the accused’s unfitness must be reserved for consideration by the trial judge. (m) If the accused is not committed for trial, and the matter is to be heard in the Children’s Court, the question of the accused’s unfitness must be investigated by the President or a magistrate in accordance with paragraphs (a)–(j).

46 To support the assessment order, a case worker program should be implemented and resourced.

Conduct of proceedings involving young people in the higher courts

47 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to specify that as far as possible, proceedings in the Magistrates’ Court, County Court and Supreme Court involving young people who raise unfitness and the defence of mental impairment should be conducted in accordance with applicable principles and approaches in the Children, Youth and Families Act 2005 (Vic).

A new ‘therapeutic supervision order’ regime in the Children’s Court

48 New provisions should be inserted into the Children, Youth and Families Act 2005 (Vic) to create the following regime for the imposition of orders: (a) Upon a finding that an accused is not criminally responsible because of mental impairment or that conduct has been proved on the evidence available (but the accused is unfit to stand trial) in the Children’s Court, the court must: (i) declare the young person liable to supervision, or (ii) order that the young person be released unconditionally. (b) A young person is to be unconditionally released unless the court is satisfied that they pose an unacceptable risk of causing physical or psychological harm to another person or other people generally. (c) If the court declares a young person to be liable for supervision, it must impose a ‘therapeutic supervision order’. The court must make either: (i) a custodial therapeutic supervision order, or (ii) a non-custodial therapeutic supervision order. (d) If the court imposes a therapeutic supervision order, it must set a fixed term of the therapeutic supervision order of two years with a progress review to be set for every six months. The order can be revoked at any time and there should be a presumption that the order will be made less restrictive at each review. (e) The person subject to the order or the person having the custody, care, control or supervision of that person may apply to the court for a variation of the order (in the case of a custodial therapeutic supervision order) or a variation or revocation of the order (in the case of a non-custodial therapeutic supervision order) during the term set by the Children’s Court. (f) On application under paragraph (e), the court must either: (i) confirm the order (ii) vary the conditions of the order (iii) for a custodial therapeutic supervision order, vary the order to a noncustodial therapeutic supervision order, or revoke the order, or (iv) for a non-custodial therapeutic supervision order, vary the order to a custodial therapeutic supervision order, or revoke the order. (g) Part 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), including sections 40, 41 and 42, should apply to the Children’s Court’s consideration of whether to act on an assessment order or to make, vary or revoke a therapeutic supervision order. Developing a forensic facility and model of care for young people

49 A multi-disciplinary youth forensic facility should be established in Victoria.

50 The Victorian Government should commission a multi-disciplinary team to develop a model of care to identify and develop the requirements for service delivery, supervision arrangements, management and operation of the youth forensic facility.

Juries under the CMIA in the higher courts - Unfitness to be determined by a judge or a magistrate

51 Section 7(3) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide that the question of a person’s fitness to stand trial is to be determined on the balance of probabilities by a judge or a magistrate. Defence of mental impairment to be determined by a jury

52 A jury should determine criminal responsibility in all criminal trials in the higher courts under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). Section 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be abolished.

53 A jury should determine the criminal responsibility of all people found unfit to stand trial in the higher courts under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). If Recommendation 52 to abolish section 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) is not adopted, the process provided for in that section should not be available to determine the criminal responsibility of a person found unfit.

Directions to the jury—findings in special hearings

54 Part 3 of the Jury Directions Act 2013 (Vic) should apply to the judge’s obligation to direct the jury on the findings that are available in special hearings under section 16(3)(d) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

Directions to the jury—approach to the elements of an offence and the defence of mental impairment

55 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide the following approach to directing the jury on how to approach the elements of an offence when the defence of mental impairment is in issue: (a) Threshold question for the judge: is the fault element unable to be established because evidence of the accused’s mental condition is capable of demonstrating that the accused did not know the nature and quality of their conduct? (b) If the answer to the threshold question is yes, Direction 1 should be given to the jury as follows: (i) The physical elements of the offence must be proved beyond reasonable doubt. (ii) If they cannot be so proved, the accused should be acquitted. (iii) If the physical elements of the offence are proved beyond reasonable doubt, the jury should be directed to consider the defence of mental impairment. (c) If the answer to the threshold question is no, Direction 2 should be given to the jury as follows: (i) All elements of the offence must be proved beyond reasonable doubt. (ii) The accused is presumed to be of sound mind; however, evidence of a mental condition can be taken into account in considering whether the fault element of the offence is proved beyond reasonable doubt. li (iii) If they cannot be so proved, the accused should be acquitted. (iv) If all elements of the offence are proved, the jury should be directed to consider the defence of mental impairment.

Directions to the jury—legal consequences of a mental impairment finding

56 The requirements of a judge in directing a jury on the legal consequences of a mental impairment finding should be specified in section 22(2)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and provide that in explaining the legal consequences of a finding of not criminally responsible because of mental impairment, the judge: (a) must explain that the person may be made subject to an indefinite supervision order or unconditionally released (b) must explain that there is a process to be followed by the judge in deciding whether an accused is made liable to supervision or unconditionally released which includes the judge considering evidence on the risk to community safety and appropriate treatment in the particular case, and (c) must not otherwise indicate the probable or likely outcome in relation to the legal consequence of the finding, or convey any impression concerning the desirability, punitive features or public safety aspects of arriving at a particular verdict.

Rights and interests under the CMIA - Better support for and communication with victims and family members

57 The Victims Support Agency in the Department of Justice should conduct work to develop a victim support scheme to provide court support, information on processes and outcomes and to assist victims to make court reports under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

58 Section 74 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide that notice of a hearing required to be given to a family member or victim under the Act must be sent by a form of communication that allows the sender to determine if the notice has been received. Such means include, but are not limited to, registered post and other correspondence that involves notification of receipt, including electronic communication.

59 The Office of Public Prosecutions should investigate options for the development of a register specifically for victims and family members under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). The register should include contact details of people on the register, indicate a person’s nominated level of participation in processes under the Act and their preferred form of communication. The register should be automated and capable of being updated by the people on the register.

60 The Victorian Institute of Forensic Mental Health (Forensicare), the Department of Human Services and the Office of Public Prosecutions should investigate options that promote more meaningful information sharing with victims about the processes governing people subject to supervision orders. Key features of the scheme should be as follows: (a) The guiding principle underpinning the scheme should be to assist counselling and treatment processes for all people affected by an offence. (b) Participation by victims is voluntary and can only occur with the consent of the victim.  (c) Where general information about the order is provided to the victim, information sharing could occur without the consent of the person on the supervision order. (d) If the person on the supervision order consents, and doing so would not be detrimental to the recovery of the person, additional information about the person’s treatment could be provided to the victim. Improving access to advocacy services for people subject to supervision orders

61 The Department of Human Services and the Department of Health should undertake a gap analysis of advocacy services for people who are subject to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to ensure that all people subject to the Act have access to advocacy services. The analysis should have specific reference to the gaps in relation to a range of advocacy services, from formal advocacy to ‘peer advocacy’ programs and the exercise of rights that include the following: (a) rights of appeal against findings and supervision orders imposed under the Act (b) rights to apply for a variation or revocation of a supervision order (c) rights to apply for extended leave and other leave (d) rights in relation to bail and remand (including place of custody) (e) rights in relation to restrictive practices and compulsory treatment.

Responsibility for representing the community’s interests  

62 Amendments should be made to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to re-frame the roles of the Attorney-General, the Director of Public Prosecutions and the Secretaries to the Department of Health and Department of Human Services in proceedings under the Act as follows: (a) The Attorney-General should not be a party to proceedings under the Act or be specifically mentioned as having a role under the Act. (b) The Attorney-General should not have an entitlement to appear under section 37(1)(a) of the Act. (c) The interests of the community should be represented by the Director of Public Prosecutions. The Director of Public Prosecutions should be a party to the following proceedings: (i) hearings of applications to make, vary or revoke a supervision order (ii) hearings of applications for extended leave (iii) appeals against decisions to make, vary, confirm or revoke a supervision order (iv) appeals against decisions to grant extended leave (v) appeals against decisions to refuse extended leave. (d) The Secretary to the Department of Health and the Secretary to the Department of Human Services should not be a party to proceedings. The role of the Secretaries to these departments should be to provide reports to assist the court in decision making and to give evidence in hearings on the treatment and management of people on supervision orders under the Act.

Clarifying the purposes of and provisions relating to suppression orders

63 A statutory principle should be added to the provisions governing suppression orders under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) that outlines that the purpose of making a suppression order is to enable the long-term recovery of people subject to the Act and to facilitate community reintegration for the protection of the community.

64 Section 75 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to: (a) insert a presumption in favour of suppression of a person’s name and identifying information, and (b) provide that where the court is satisfied that it is in the public interest to do so: (i) the court may make a suppression order in any proceeding (within the meaning of section 4 of the Act), or (ii) a person may make an application for a suppression order at any time once any proceeding (within the meaning of section 4 of the Act) has commenced.

Processes and findings under the CMIA in all courts - Power to remand in an appropriate place after a permanent finding of unfitness

65 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to enable a judge or magistrate to make any order under section 12(2) of the Act, including remanding the accused in custody in an appropriate place for the period before the special hearing following a finding that the accused is unfit to stand trial and is not likely to become fit within 12 months.

Providing exceptions to the requirement that an accused attend a special hearing  

66 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to: (a) enable a judge or magistrate to excuse an accused from attending a special hearing with the consent of both parties, and (b) provide that an accused may ‘attend’ a special hearing by audiovisual link, with the consent of both parties. Streamlining the hearing of multiple matters

67 The Criminal Procedure Act 2009 (Vic) should be amended to permit the court, with the consent of the accused and the prosecution, to make an order allowing: (a) a charge-sheet or indictment to contain charges for multiple matters in which the question of unfitness to stand trial has been raised, and (b) a charge-sheet or indictment to contain charges for multiple matters in which the issue of whether the defence of mental impairment is established is to be determined.  

Changing the names of findings

68 Section 17(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to change the finding that the accused ‘committed the offence charged’ to a finding that the ‘conduct is proved on the evidence available’.

69 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to change the finding that the accused is ‘not guilty of the offence because of mental impairment’ to a finding that the ‘conduct is proved but not criminally responsible because of mental impairment’.

Ensuring that information is provided to the court after a finding

70 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to enable the court to adjourn a matter to obtain any reports necessary under section 40(2) or a certificate of available services under section 47 prior to a decision to declare that the person is liable to supervision or to order the person be released unconditionally under sections 18(4) or 23.

71 Section 41 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended so that reports on the mental condition of a person under that section can be prepared and filed prior to a decision to declare that the person is liable to supervision under sections 18(4) or 23.

72 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended so that the court need not consider the report on the mental condition of a person under section 41(1) and a report under section 40(2)(a) if the report under section 41(1) addresses the matters listed in section 40(2)(a). Extending the timeframe for preparing certificate of available services  

73 Section 47(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require the provision of a certificate of available services to the court within 30 days after receiving a request under section 47(1) or within such a longer period as the court allows.

Improving the process where a person is already subject to a supervision order

74 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to enable a court to decline to impose a subsequent supervision order where a person is already subject to a supervision order. Approach to reviewing ancillary orders and consequences  

75 The Victorian Government should review the ancillary orders and consequences that may follow a finding under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) with the aim of clarifying the ancillary orders or consequences that should or should not be available following a finding under the Act. In conducting any such review, the following approach should be taken: (a) Ancillary orders and consequences following findings under the Act should, as far as possible, not be punitive in intention or effect and should be made where necessary for the safety of the community. (b) Ancillary orders and consequences following findings under the Act should not be mandatory or imposed automatically, but should instead be founded on the court’s discretion. lv (c) The ancillary orders and consequences that follow a finding that the ‘conduct is proved on the evidence available’ and a finding that the ‘conduct is proved but not criminally responsible because of mental impairment’ should be distinguished where appropriate.

Expanding rights of appeal against fitness findings

76 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended so that in a criminal proceeding in the County Court or the Trial Division of the Supreme Court, the accused may appeal to the Court of Appeal against: (a) any finding on fitness to stand trial, and (b) any finding on fitness to plead guilty.  

Allowing de novo appeals to the County Court from the Children’s Court and Magistrates’ Court  

77 The Criminal Procedure Act 2009 (Vic) should be amended so that an appeal to the County Court against a supervision order does not result in a stay of any supervision order imposed on the person.

78 The Criminal Procedure Act 2009 (Vic) should be amended so that a person may appeal to the County Court against: (a) a finding and supervision order made in the Magistrates’ Court under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and in the Children’s Court, under the Children, Youth and Families Act 2005 (Vic), or (b) a supervision order made in the Magistrates’ Court under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and in the Children’s Court, under the Children, Youth and Families Act 2005 (Vic).  

Improving the supervision, review and leave framework in the higher courts  - Retaining the judicial model of decision making  

79 The judicial model of decision making should be retained under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). Transparency and continuity in leave decisions

80 Sections 40(1) and 54(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require the court and the Forensic Leave Panel respectively to have regard to any on-ground or off-ground leave the person has been granted and their compliance with the conditions of their leave when deciding whether to grant leave.

81 An education and training package should be developed for Forensic Leave Panel members that: (a) emphasises the importance of explaining each type of leave that has been granted or rejected and any variations in leave (b) emphasises the communication of the reasons why the Panel, as an independent body, has reached its decision to approve or reject the leave application   (c) encourages Panel members to provide suggestions on how the person can improve their likelihood of success in subsequent leave applications, and (d) ensures that Panel members inform the person of their right to request written reasons at the end of the hearing.

82 A review should be conducted of the processes of the Internal Leave Review Committee to consider whether they operate consistently with the principles that underlie the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

Retaining indefinite terms for supervision orders in the higher courts

83 There should be no change to the indefinite term of supervision orders imposed in the higher courts as provided in section 27 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

Replacement of nominal term system with a new system of five-year ’progress reviews’

84 The provisions in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) relating to nominal terms in the higher courts should be repealed, and replaced by provisions to the effect that: (a) a supervision order is for an indefinite term and that the matter is to be brought back to the court at the end of every five years for a ‘progress review’ (b) the court must set a term of five years before the first progress review of a supervision order to run from the day the person was first made subject to the supervision order, and (c) the court that made the supervision order must conduct the first progress review of the order before the end of the five-year term and thereafter at intervals not exceeding five years for the duration of the order. Presumptions under the new system of ‘progress reviews’  

85 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to introduce the following presumptions to apply at progress reviews of supervision orders: (a) the court must not vary a custodial supervision order to a non-custodial supervision order before the first progress review unless satisfied on the evidence available that the person would not pose an unacceptable risk of causing physical or psychological harm to another person or other people generally as a result of the variation (b) at the second progress review of a custodial supervision order and progress reviews thereafter, the court must vary the custodial supervision order to a non-custodial supervision order unless satisfied on the evidence available that the person would pose an unacceptable risk of causing physical or psychological harm to another person or other people generally as a result of the variation, and (c) at the second progress review of a non-custodial supervision order and progress reviews thereafter, the court must revoke the non-custodial supervision order unless satisfied on the evidence available that the person would pose an unacceptable risk of causing physical or psychological harm to another person or other people generally as a result of the revocation of the order.  

86 Section 35(3)(a)(i) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to clarify that a custodial supervision order should not be varied to a non-custodial supervision order at a progress review unless the forensic patient or forensic resident has completed a period of at least 12 months extended leave.

A new test of ‘unacceptable risk’ for decision making

87 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require: (a) When making decisions, the relevant decision maker to: (i) for section 40(1)(c), consider whether the person would pose an unacceptable risk of causing physical or psychological harm to another person or other people generally because of his or her mental impairment (ii) for sections 50(3)(b), 54(2)(b), 54(3)(b), 57(2) and Schedule 3 clause 4, be satisfied that the person would not pose an unacceptable risk of causing physical or psychological harm to another person or other people generally (iii) for sections 55(1), 58(1), 58(4)(a) and 73F(5) be satisfied that the person would pose an unacceptable risk of causing physical or psychological harm to another person or other people generally, and (iv) for section 30(1)(b), have a reasonable belief that the person would pose an unacceptable risk of causing physical or psychological harm to another person or other people generally. (b) The court under section 40(1)(d) to consider the need to protect people from such risk.

88 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require that, in deciding whether to declare the person liable to supervision or to unconditionally release the person, the court is to have regard to whether the person poses an unacceptable risk of causing physical or psychological harm to another person or other people generally.  

89 References to the danger the person poses to themselves or the person’s safety in sections 40(1)(c), 54(2)(b), 54(3)(b), 55(1), 57(2), 58(1), 58(4)(a), 30(1)(b), 73F(5) and Schedule 3 clause 4 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be removed.

Additional factors relevant to decision making

90 Section 40(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require that, for the purpose of considering whether a less restrictive order is more appropriate, the court is to have regard to whether the person is receiving treatment or services under a civil order under the Mental Health Act 2014 (Vic) or the Disability Act 2006 (Vic), and the conditions of any such order.

91 Sections 40(1) and 54(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require the court and the Forensic Leave Panel respectively to have regard to the supervised person’s recovery or progress in terms of treatment progression and personal improvement.  

Increasing flexibility—extending and suspending leave  

92 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended so that: (a) A grant of special leave, on-ground leave or off-ground leave can be extended for the same period and subject to the same conditions by the authorised psychiatrist of the approved mental health service or the Secretary to the Department of Human Services. (b) The authorised psychiatrist for the approved mental health service or the Secretary to the Department of Human Services must provide the Forensic Leave Panel with a report of the person’s progress while on leave and their compliance with the conditions of their leave for each period for which leave is extended. (c) The Chief Psychiatrist may delegate the power to suspend a special leave of absence, on-ground leave or limited off-ground leave under section 55 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to the authorised psychiatrist of the approved mental health service.

Increasing flexibility—leave conditions

93 Education and training for Forensic Leave Panel members in Recommendation 81 should include guidelines on making leave conditions sufficiently prescriptive so that they are consistent with the safety of the community but sufficiently flexible to not unduly restrict the person’s freedom or personal autonomy. Other improvements to leave processes  

94 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to reflect that the applicant profile may be provided by an authorised psychiatrist at the Victorian Institute of Forensic Mental Health (Forensicare) or their delegate under section 54A(1)(a).

95 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to clarify that a person whose leave is suspended under section 58, or a person on their behalf, may apply for special leave of absence.

Providing exceptions to the requirement that an accused attend a review hearing  

96 The following amendments should be made to the review provisions in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to provide that: (a) If a supervised order is being confirmed, the court may order the review hearing to be conducted on the papers with the consent of all parties. (b) The court may order that any person required to attend a review hearing attend via video link with the consent of all parties. (c) If the attendance of the supervised person before the court would be detrimental to the person’s health, the court may order that the person not attend the hearing or attend via video link with the consent of all parties.

Removing the three-year restriction on applying for a variation of a custodial supervision order

97 Section 31(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be abolished. 

Management of people subject to supervision orders - Models of care and accommodation needs for people with an intellectual disability or other cognitive impairment  

98 The Department of Human Services should commission a review of current forensic disability services to identify appropriate models of care and the accommodation needs of people with an intellectual disability or other cognitive impairment who are subject to supervision orders under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). The review should include an analysis of the cost of any recommendations regarding appropriate models of care and accommodation needs.

Flexibility in responding to breaches of supervision orders  

99 The following amendments should be made to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to allow for greater flexibility in managing people who have breached the conditions of their non-custodial supervision order: (a) Section 29(4) should be amended to allow the court to adjourn an application under section 29(1) for variation of a supervision order for a period not exceeding 12 months where the court is satisfied by evidence on oath, whether orally or by affidavit, from the supervisor, the Department of Human Services or the Department of Health that, having regard to the person’s risk, a period of assessment and treatment is appropriate prior to consideration of the application to vary the non-custodial supervision order to a custodial supervision order. (b) Section 30(4) should be amended to create an exception to the requirement that a person detained under this section be released within 48 hours if an application has been made and a court has made an order adjourning the application to vary the supervision order. (c) Section 30 should be amended to provide a power for the authorised psychiatrist of the approved mental health service or the Secretary to the Department of Human Services to authorise the release of a person from detention following an application under section 29(1) and prior to the court hearing an application in section under 30(4).  

100 A new medium-secure forensic mental health facility should be established as an approved mental health service for adults with a mental illness who are subject to supervision orders under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).  

101 The Department of Health and the Department of Human Services should develop workforce strategies to increase the capacity of the general mental health and disability sectors to undertake forensic mental health and disability work. Such strategies could include the development of guidelines on decision making in relation to supervision orders.

Police contact with people subject to supervision orders  

102 Victoria Police should add a flag to the ‘attendance module’ in the Law Enforcement Assistance Program (LEAP) database to enable data to be entered and accessed that will immediately notify a police officer that a person is subject to a supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

Improving the suitability of the system for people with an intellectual disability or other cognitive impairment  

103 Section 26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require a court, when making a supervision order in respect of a person, to specify the department that is responsible for the person’s supervision.  

104 A requirement should be added to section 26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) that the department which is specified as having responsibility for the person’s supervision must prepare a treatment plan for the person on the supervision order.  

105 Section 40(e) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require that the court have regard to ‘whether there are adequate resources available for treatment, support or services in the community’.  

106 The definition of ‘compulsory treatment’ in the Disability Act 2006 (Vic) should be amended to include people subject to a supervision order that designates the Secretary to the Department of Human Services as responsible for the person’s supervision.

Interstate transfer orders  

107 Sections 73D and 73E of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide that: (a) the relevant Secretary has the power to make an order authorising the interstate transfer of a person, and (b) sections 73D(2)(a) and 73E(2)(a) allow either the Chief Psychiatrist or the Secretary of the Department of Human Services to certify that the transfer is of benefit to the person and that facilities and services are available.