Crimes Mental Impairment consultation paper.pdf - Victorian Law ...

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Foreword The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA) affects some of the most vulnerable members of our society. People charged with criminal offences may be vulnerable because of a mental condition, such as a mental illness, intellectual disability or some other form of cognitive impairment such as an acquired brain injury. The CMIA is also significantly concerned with community safety and affects other vulnerable people within our community, including victims of crime or family members of people subject to the CMIA. The CMIA sets out the law and process for determining whether a person is mentally unfit to stand trial and whether a person, because of a mental impairment, is not criminally responsible for offending. These laws and processes reflect long-standing legal principles that all people are entitled to a fair criminal hearing and that people should only be punished for behaviour for which they are criminally responsible. The CMIA also provides a system for supervising and managing people subject to the Act. This system takes into account that a person found unfit to stand trial has not been tried in accordance with the usual criminal procedure and a person found not guilty because of mental impairment has not been found criminally responsible for their actions. However, the system also signals that the person has committed an offence, often a serious offence, and there may be necessary consequences that reflect the likely danger the person poses to other people or themselves without supervision and treatment of their mental condition. The system thus seeks to strike a balance between the protection of the community, including victims and their families, and the rights and clinical needs of people found unfit to stand trial or not guilty because of mental impairment. The CMIA was introduced in 1997 to address problems that existed with the ‘Governor’s pleasure’ regime that previously governed the law in this area. The CMIA has now been in operation for 15 years. While various reviews have looked at particular aspects of the CMIA, there has been no review of the operation of the Act as a whole since its enactment. The Attorney-General has asked the Commission to review the CMIA. He has asked the Commission to report on whether changes are needed to ensure that the CMIA is operating in a way that is just, effective and consistent with its underlying principles. The Commission’s task necessitates an understanding of a broad range of issues in the health, disability, law and justice sectors. Some of these issues are legal in nature, while others are more process-driven. The Commission will be consulting with a broad range of people from the community and professionals as part of this reference. This consultation paper is an important step in this consultation process. I encourage everyone who has had experience with the CMIA or with an interest in the issues raised in the consultation paper to make a submission to the Commission by 23 August 2013. The Hon. Philip Cummins, Chair, Victorian Law Reform Commission vii
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper Guide to this consultation paper The CMIA canvasses a wide range of issues. Some of the issues are conceptual and legal in nature, while other issues are about process and procedures. Chapter 1 contains introductory information about the Commission’s approach to the reference and consultation processes. Chapter 2 contains an overview of the CMIA legislation, background (including the Governor’s pleasure regime and previous reviews of the CMIA) and the CMIA’s underlying principles. Chapter 3 contains a contextual examination of people with mental conditions in the criminal justice system and the pathway followed by people subject to the CMIA. The laws regarding unfitness to stand trial in Chapter 4 and the mental impairment defence in Chapter 5 are technical areas that raise complex issues of law. These chapters also cover issues regarding the process for determining unfitness to stand trial and establishing the defence of mental impairment. Chapter 6 looks at a very specific policy issue: whether there should be a further expansion of the CMIA to the Magistrates’ Court. Chapters 7–9 focus on the provisions governing the making of orders, leave, supervision and review and the representation of various interests across these areas of operation. Chapters 7 and 8 are focused entirely on discrete processes, while Chapter 9 looks at systemic issues that apply to the system of supervision and review as a whole. viii
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