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

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.