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

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6.72 There are a number of orders under the Mental Health Act and the Disability Act that
could be used to address the needs of accused people with a mental illness, intellectual
disability or cognitive impairment in the Magistrates’ Court. The Mental Health Act
contains the following orders for people with a mental illness:
• Involuntary treatment order—This is an order that allows for the involuntary detention
of a person for treatment at an approved mental health service. 103
• Community treatment order—This is an order for people subject to an involuntary
treatment order for treatment in an approved mental health service without detention. 104
6.73 Under the Mental Health Act, a person must satisfy the following criteria for involuntary
treatment:
• the person appears to be mentally ill
• the person’s mental illness requires immediate treatment and that treatment can be
obtained by the person being subject to an involuntary treatment order
• because of the person’s mental illness, involuntary treatment of the person is necessary
for their health or safety (whether to prevent a deterioration in the person’s physical
or mental condition or otherwise) or for the protection of members of the public
• the person has refused or is unable to consent to the necessary treatment for the
mental illness
• the person cannot receive adequate treatment for the mental illness in a manner less
restrictive of their freedom of decision and action. 105
6.74 The Disability Act contains provisions for a supervised treatment order, that is an order to
detain people with an intellectual disability who pose ‘a significant risk of serious harm
to others’. 106
Processes potentially available in the Magistrates’ Court
6.75 In recent years, the Magistrates’ Court has developed a number of support and diversion
initiatives to address the issues underlying offending behaviour. These include the Court
Integrated Services Program (CISP) and the Assessment and Referral Court (ARC) List. CISP
provides short-term services and support before sentencing to accused people with health
and social needs. The ARC List is a specialist court list to meet the needs of accused
people who have a mental illness and/or a cognitive impairment. A Mental Health Court
Liaison Service (MHCLS), provided by Forensicare, also operates out of the Melbourne
Magistrates’ Court and a number of regional and rural courts.
Assessment and Referral Court (ARC) List
6.76 The ARC List, established in 2010, is a ‘specialist problem-solving court’ piloted by
the Magistrates’ Court in collaboration with the Department of Justice. The list, that
operates in Melbourne, was established to assist people who have a mental illness
and/or a cognitive impairment by addressing the issues that underlie their offending
behaviour. It aims to reduce the likelihood of re-offending. Like other specialist courts
in the Magistrates’ Court, the ARC List is generally less formal than a traditional court.
It is an interactive process designed to make participants more comfortable, which
encourages greater compliance and responsiveness to any orders imposed, and provides
a more individualised and practical approach to address the needs of this group of
accused people. 107
103 Mental Health Act 1986 (Vic) ss 12, 12AA.
104 Ibid s 14.
105 Ibid s 8(1).
106 Disability Act 2006 (Vic) s 191(2)(c).
107 Magistrates’ Court of Victoria, above n 13, 15.
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