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

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8 Operation of the Internal Leave Review Committee 8.101 The Vincent Review was commissioned in 2001 to consider leave arrangements for patients at the Thomas Embling Hospital in response to community safety concerns following a patient absconding from the hospital. The Vincent Review recommended establishing a committee to comment on leave applications, convened by Forensicare’s Clinical Director and comprising the Chief Psychiatrist, senior clinical staff and heads of treating teams. The purpose of such a committee was to: • consider leave applications (other than applications for special leave) • consider the associated treatment plans • ensure relevant clinical issues are considered • formally endorse the plans. 8.102 Under the proposal, the Clinical Director was then to pass on the advice of the committee to the formal leave decision-making body. 109 8.103 Forensicare implemented the Vincent Review’s recommendation by establishing the Internal Leave Review Committee. Unlike the Forensic Leave Panel, the Internal Leave Review Committee does not have a legislative basis. As an internal body, the Internal Leave Review Committee’s policy, procedures and decision making are not governed by legislation, even though its recommendations would be influential in the Forensic Leave Panel or court’s decision making. 8.104 There are obvious benefits of an Internal Leave Review Committee. It can provide useful assistance to the Forensic Leave Panel or the court in considering applications for leave and thus an extra degree of oversight for leave applications. In its 2010 annual report, the Forensic Leave Panel made the following observation: Occasionally, the leave review committee (for forensic patients) does not support an application that the treating team supports. In that case, the hearing offers an additional opportunity for the treating team to clarify any issues surrounding the application. 110 8.105 Further, the Internal Leave Review Committee can ensure consistency in the approach taken by Forensicare to preparing information (such as applicant profiles and leave plans or statements). The role of the Internal Leave Review Committee is well documented, 111 but there is less publicly available information about how it functions in practice. This raises questions about how people who may be subject to the leave process perceive it to operate in terms of transparency and fairness. Question 78 Are changes required to the operation of the Internal Leave Committee If so, what changes are required 109 Review Panel Appointed to Consider Leave Arrangements for Patients at the Victorian Institute of Forensic Health, above n 38, 31. 110 Forensic Leave Panel, Annual Report 2010, above n 102, 13. 111 See, for example Forensic Leave Panel, Annual Report 2010, above n 102. 177
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper Monitoring people subject to supervision orders 8.106 The arrangements for the supervision, treatment and management of people subject to supervision orders are complex. While the CMIA has set out some of the arrangements, to a large degree they are contained in various policies and procedures of agencies in the Department of Health and the Department of Human Services that are responsible for managing and providing treatment to people subject to supervision orders. 8.107 In this section, the Commission describes the processes for monitoring people subject to supervision orders and seeks to identify how they operate in practice. In doing so, the Commission considers the potential issues in the following areas: • responsibility for people subject to supervision orders • breaches of supervision orders • people who abscond to Victoria from another state • interstate transfer orders. Responsibility for people subject to supervision orders 8.108 As discussed at [8.13]–[8.14] a number of organisations have responsibility for supervising people subject to orders under the CMIA. The Department of Health has primary responsibility for forensic patients, whereas the Department of Human Services has primary responsibility for forensic residents. 112 8.109 Forensicare or the Department of Human Services manage people subject to non-custodial supervision orders in the community, depending on the nature of the mental impairment. Responsibility for people on non-custodial supervision orders 8.110 When a court makes a non-custodial supervision order, it will generally specify: • who manages the non-custodial supervision order (for example, the authorised psychiatrist of Forensicare) • the area mental health service that will treat the person. 113 8.111 The person supervising the order monitors the treatment and management of the person but most of the time has no direct clinical responsibility for providing the treatment. 114 8.112 In terms of departmental responsibility for people on non-custodial supervision orders, the Secretary to the Department of Human Services and the Secretary to the Department of Health must file a report with the court on the person subject to the non-custodial supervision order at intervals of not more than 12 months. 115 The Secretary to the Department of Human Services and the Secretary to the Department of Health also have powers under the CMIA to address non-compliance with non-custodial supervision orders. 116 The CMIA does not otherwise provide that these departments are responsible for people on non-custodial supervision orders. 8.113 In its preliminary research, the Commission identified that there can be complex arrangements for the supervision, management and treatment of people subject to supervision orders. As a result, there can be a lack of clarity around who is responsible for monitoring, reporting and returning people to court for hearings or for responding to breaches of an order. This situation could arise, for example, in the case of a person 178 112 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 26(8), 26(9). 113 Department of Human Services, above n 39, 14. 114 Ibid 15. 115 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 41. 116 Ibid ss 29, 30A.
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