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

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8 8.42 In 2011–12, five forensic patients on a custodial supervision order returned to court for a review or major review. In four of the five cases, the court confirmed the custodial supervision order. In the other case, the court granted the person extended leave. In the same year, the court varied custodial supervision orders for four people on extended leave to a non-custodial supervision order. 37 8.43 In 2011–12, there were 30 reviews or major reviews of non-custodial supervision orders. The court revoked the non-custodial supervision orders of 10 people. This is five more than the previous year. 8.44 One option would be to preserve the flexibility that the CMIA gives to judges, while also ensuring that people subject to supervision orders are not ‘lost in the system’. In the Commission’s reference on guardianship, for example, the Commission recommended a legislatively required regular, automatic review of each custodial supervision order under the CMIA at an interval of no longer than every two years. To the Commission’s knowledge, this recommendation has not yet been adopted. Questions 71 In your experience as either a person subject to a supervision order, a family member of a person subject to a supervision order or a victim in a CMIA matter, how has the frequency of reviews affected you 72 What effect does the current frequency of reviews have on court resources and the resources of other parties involved 73 Does the CMIA strike the right balance between allowing for flexibility in the frequency of reviews and ensuring that people subject to supervision orders are reviewed whenever appropriate Leave of absence under supervision orders 8.45 Forensic patients and forensic residents are able to apply for a leave of absence from their supervision order. Leave arrangements enable forensic patients and forensic residents to be absent from their place of custody for a number of reasons, including: • for access to necessary services that cannot be provided while in custody (such as medical services) • for court attendance • for humanitarian grounds (for example, attending a family member’s funeral) • in anticipation of discharge (for example, to find accommodation or seek employment) • as part of a rehabilitation plan to encourage people subject to supervision orders to develop the social skills necessary for rehabilitation and social reintegration. 38 8.46 The purpose of leave is to allow a person on a custodial supervision order to gradually reintegrate into the community. A graduated approach to granting leave aims to balance the person’s rehabilitative needs with the safety of the community. A person’s progress through the various types of leave will therefore vary from individual to individual and will 37 Victorian Institute of Forensic Mental Health, Report of Operations 2011–2012 (2012) 31. 38 Review Panel Appointed to Consider Leave Arrangements for Patients at the Victorian Institute of Forensic Health, Report (2001) 14. 167
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper depend on the nature of the person’s illness or condition, their response to treatment or rehabilitation and the person’s risk profile. 39 It is a: stepwise process, contingent on the successful negotiation of a graduated leave process. … If a patient demonstrates a sustained ability to cope with a return to life outside of an institution, then the level of uncertainty in assessing their risk is correspondingly lowered. 40 8.47 The Forensic Leave Panel’s annual report describes this graduated approach to leave as follows: Initially a patient or resident is granted a small amount of leave, which is escorted by two or three staff members. This could include leave to attend medical appointments, or may allow a patient or resident to attend a nearby facility (such as a park or café) for one hour a week. This slow approach to leave allows for gradual reintregration into the community, and also provides staff with a valuable opportunity to monitor how the person copes and adapts in a community setting. If a patient or resident can successfully participate in leave over a sustained period, the [Forensic Leave Panel] may decrease the number of escorts and increase the number of approved locations and purposes, as well as the duration, of further leaves. This process allows a patient or resident to increase their participation in a wide variety of activities that form part of everyday living in order to prepare them for release back into the community. 41 8.48 The following section explains the types of leave available to forensic patients and forensic residents, the process of applying for leave, the documentation in support of a leave application, the criteria for granting leave and the leave conditions that the court may impose. The section will also outline the process for suspending and revoking leave and appealing leave decisions. It will explain the functions and processes of the Forensic Leave Panel and the administrative arrangements for the panel such as the appointment of members. In doing so, it focuses on the process issues regarding leave. 8.49 Chapter 9 discusses the criteria for granting leave and the representation of various interests in the leave process in more detail. Types of leave 8.50 The CMIA is unique among Australian jurisdictions because it specifies the type of leave that is available based on the location and duration of the leave, and designates different decision-making bodies for the different types of leave. 8.51 Other Australian jurisdictions tend to categorise leave based on the purpose of the leave. For example in Queensland, a person may request a temporary leave of absence on medical grounds, to appear before a court or tribunal or for any other reasons on compassionate grounds. 42 In New South Wales leave is available for emergency or special circumstances. 43 In Tasmania a person can apply for leave for personal reasons, for rehabilitation or reintegration into the community or for ‘any other purpose’. 44 8.52 The types of leave available under the CMIA are: • special leave of absence • on-ground leave • limited off-ground leave • extended leave. 45 8.53 Table 5 shows the types of leave available under the CMIA. 168 39 Department of Human Services, Non-custodial supervision orders: Policy and procedure manual (2011) 8. 40 Andrew Carroll, Mark Lyall and Andrew Forrester, ‘Clinical Hopes and Public Fears in Forensic Mental Health’ (2004) 15(3) Journal of Forensic Psychiatry and Psychology 407, 416–7. 41 Forensic Leave Panel, Annual Report 2011 (2012) 4. 42 Mental Health Act 2000 (Qld) s 186. 43 Mental Health (Forensic Provisions) Act 1990 (NSW) ss 49, 50. 44 Mental Health Act 1996 (Tas) s 72Q(5). 45 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 49.
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2 The CMIA: background and principl
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2 2.94 The CMIA’s therapeutic aim
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4 Unfitness to stand trial 52 Intro
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