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

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The flexibility in the system
9.4 When making supervision orders under the CMIA, courts have limited orders to impose in
relation to people declared liable to supervision. The court can either impose a custodial
supervision order or a non-custodial supervision order. If the court does not declare a
person to be liable to supervision, the court only has the option of ordering that the
person be released unconditionally. When varying an order during a review, further
review or major review, the court can generally choose between custodial supervision
orders, non-custodial supervision orders (with varying conditions) or a revocation of
a non-custodial supervision order to release the person. When a person subject to a
non-custodial supervision order has not complied with the order, the possible outcomes
are similar: the court may confirm the order, vary the conditions of the non-custodial
supervision order or move the person back to a custodial supervision order.
9.5 The Commission’s preliminary research indicates that while courts are able to address
breaches, the orders available to the court at various stages of the supervision regime may
be unduly limited. This issue arises mainly in:
• making and reviewing supervision orders
• addressing the non-compliance of supervision orders.
9.6 The system’s potential lack of flexibility could result in a mismatch between the
supervision the person should ideally receive and the supervision order that is actually
made. A person subject to a custodial supervision order, for example, could be managed
in lower security facilities rather than in the high security setting at the Thomas Embling
Hospital in cases where the level of offending was not serious or their mental illness is
not acute (but the person still requires a higher level of supervision than that available
on a non-custodial supervision order). A person with an intellectual disability may be
better managed under the Disability Act 2006 (Vic) that would give them the benefit of a
treatment plan, currently not required or reviewable under the CMIA.
9.7 The current system’s potential lack of flexibility could also be problematic in terms of
the limitations that it imposes when responding to the non-compliance of a supervision
order. A person who breaches a non-custodial supervision order, for example, may do
so because of drug or alcohol use, and not because of re-offending or because they are
experiencing symptoms of their mental illness. In these circumstances, making an order
that would target the drug or alcohol issue could be a better approach than moving the
person back to a custodial supervision order and would also be more consistent with the
principle of least restriction underlying the CMIA.
9.8 A lack of flexibility in the CMIA could also suggest issues with the way the CMIA operates
in conjunction with other legislation that works alongside it to facilitate the treatment
and management of people subject to the CMIA. The Commission’s preliminary research
indicates that there may be a need to examine how the CMIA interacts with other
relevant legislation, including the Mental Health Act 1986 (Vic) and the Disability Act,
and whether there are areas that prevent the CMIA from operating consistently with its
underlying principles.
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