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

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8 8.77 The same criteria outlined at [8.75] apply to an application to vary a forensic patient or forensic resident’s on-ground or limited off-ground leave. However, the Forensic Leave Panel must also be satisfied that there has been a significant alteration in the person’s circumstances since it last granted or varied leave. 77 Suspension of on-ground leave or limited off-ground leave 8.78 The Chief Psychiatrist (for forensic patients) or the Secretary to the Department of Human Services (for forensic residents) may suspend on-ground or limited off-ground leave if they are satisfied on the evidence available that the safety of the forensic patient or forensic resident on leave or members of the public will be seriously endangered if they do not suspend leave, or part of the leave. 78 The Chief Psychiatrist or Secretary to the Department of Human Services must lift the leave suspension where there is no longer a reason for suspending a forensic patient or forensic resident’s leave. 79 8.79 In 2011, nine forensic patients had their leave partially or wholly suspended. No forensic residents had their leave suspended during the same period. 80 Extended leave 8.80 Extended leave allows a forensic patient or a forensic resident to leave the place where they are being detained for a period of time not exceeding 12 months. 81 8.81 In 2011–12, six patients moved from Thomas Embling Hospital to live full time in the community on extended leave. 82 Applying for extended leave 8.82 A forensic patient or forensic resident may apply for extended leave to the court that made their original custodial supervision order. 83 The forensic patient or forensic resident can apply for extended leave themselves or the authorised psychiatrist (for forensic patients) or the Secretary to the Department of Human Services (for forensic residents) can apply on their behalf. 84 Extended leave plan 8.83 The authorised psychiatrist (for a forensic patient) or the Secretary to the Department of Human Services (for a forensic resident) must prepare a leave plan and submit it to the court in support of an application for extended leave. 85 The court may grant extended leave if satisfied that the safety of the person applying for leave or the safety of members of the public will not be seriously endangered as a result of the person’s extended leave. 86 The court must also consider a number of matters under section 40 of the CMIA, such as the nature of the person’s mental impairment and whether there are adequate resources available for the treatment and support of the person in the community. These matters will be considered in more detail in Chapter 9. 77 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 54(3)(c). 78 Ibid s 55(1). 79 Ibid s 55(3). 80 Forensic Leave Panel, Annual Report 2011, above n 41, Appendix C. 81 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 56(1)(a). 82 Victorian Institute of Forensic Mental Health, above n 37, 31. 83 Ibid s 57(1). 84 Ibid s 57(1). 85 Ibid s 57A. 86 Ibid s 57(2). 173
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper Suspending and revoking extended leave 8.84 The Chief Psychiatrist (for forensic patients) or the Secretary to the Department of Human Services (for forensic residents) can suspend the extended leave of a person on a custodial supervision order. 87 8.85 Suspension of leave can only occur in situations where the safety of the forensic patient or forensic resident on leave, or members of the general public will be seriously endangered if the Chief Psychiatrist or the Secretary to the Department of Human Services do not suspend leave. 88 8.86 Once a forensic patient or forensic resident’s leave has been suspended, the Chief Psychiatrist or the Secretary to the Department of Human Services must either make an application to the court that granted their leave to revoke the leave or lift the suspension. 89 The Chief Psychiatrist or the Secretary to the Department of Human Services must also lift the suspension where they are satisfied that the reason for suspending the leave no longer exists. 90 8.87 In 2011–12, one forensic patient had their extended leave revoked and returned to the Thomas Embling Hospital. 91 Appealing a grant of extended leave or decision to revoke or suspend extended leave 8.88 A forensic patient or forensic resident may appeal to the Court of Appeal against a court’s refusal to grant extended leave. 92 A person may appeal to the Court of Appeal against a decision to revoke their extended leave. 93 Administering leave 8.89 Certain types of leave for forensic patients and forensic residents require staff supervision. The Commission’s preliminary research suggested that there may be circumstances where forensic patients have sought to make use of the leave they had been granted, but may have been unable to do so for operational reasons. Operational issues may arise because of resource constraints and the availability of staff. Questions 74 Are changes required to the leave processes to make them more just, efficient and consistent with the principles underlying the CMIA If so, what changes are required 75 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 have leave processes affected you 174 87 Ibid s 58(1). 88 Ibid. 89 Ibid s 58(2)(b). This must occur within 48 hours after the leave has been suspended. 90 Ibid s 58(5). 91 Victorian Institute of Forensic Mental Health, above n 37, 31. 92 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 57B(1). 93 Ibid s 58A(1).
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2 The CMIA: background and principl
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4 Unfitness to stand trial 52 Intro
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