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

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9 Decision making in the CMIA supervision system 9.11 In this section, the Commission considers the approach to decision making in the CMIA system of supervision. This includes decisions made by the courts, the Forensic Leave Panel, experts and people responsible for the supervision and treatment of people subject to the CMIA. Principles and matters the court considers 9.12 The CMIA requires that in making, varying or revoking a supervision order or granting or revoking extended leave, the court must apply the principle that ‘restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community’. 5 9.13 The court must also have regard to: • the nature of the person’s mental impairment or other condition or disability • the relationship between the impairment, condition or disability and the offending conduct • whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of their mental impairment • the need to protect people from such danger • whether there are adequate resources available for the treatment and support of the person in the community, and • any other matters the court thinks relevant. 6 9.14 Reports play an important role in the court’s decision making. The court must obtain and consider reports from a range of people involved in the supervision of the person including medical practitioners, psychologists, other people involved in supervising the person, and from victims and family members who may have submitted a report. 7 9.15 Additionally, in extended leave applications, the court may grant extended leave if it is satisfied that the safety of the forensic patient or forensic resident, or members of the public will not be seriously endangered as a result of the forensic patient or forensic resident’s extended leave. 8 Courts must consider the leave plan filed in support of applications for extended leave. 9 Application of the principles and matters the court is to consider 9.16 The next section will consider how the court applies sections 39 and 40 of the CMIA and whether the current criteria and its application is striking the right balance between the freedom of people subject to supervision orders and the safety of the community. Presumptions 9.17 In major reviews, there is a presumption that the court must vary a custodial supervision order to a non-custodial supervision order unless the court is satisfied on the evidence available that the safety of the person subject to the supervision order or members of the public will be seriously endangered as a result of reducing the supervision status of the person. 10 This presumption is advantageous to the person subject to a supervision order. However, it stands in contrast with the presumption that applies to varying orders when 5 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 39. 6 Ibid s 40. 7 Ibid s 40(2). 8 Ibid s 57(2). 9 Ibid s 40(2)(da). 10 Ibid s 35(3). 189
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper However, it stands in contrast with the presumption that applies to varying orders when an application is made. In this case, the presumption is in favour of keeping the person on the custodial supervision order. Section 32(2) of the CMIA provides that the court must not vary a custodial supervision order to a non-custodial supervision order unless satisfied that the safety of the person subject to the supervision order or members of the public will not be seriously endangered. 9.18 In extended leave matters, there is no presumption either way. The court may grant an application of extended leave if satisfied that the safety of the forensic patient or forensic resident will not be seriously endangered because of the extended leave. 11 9.19 The existence of different presumptions that apply at various stages of the decisionmaking process prompts examination of why these differences exist and how they operate in practice at different stages of review. Question 87 Are the current presumptions in varying and revoking supervision orders appropriate The role of dangerousness 9.20 A significant part of the decision to make, vary or revoke a supervision order or to grant extended leave hinges on the court’s assessment of the dangerousness of the person subject to the supervision order. The system currently in place, that permits the detention of a person based on the likelihood of endangerment, is a system of preventive detention, justified because of community protection. McSherry says: There is a presumption that a person who has committed a crime once because of his or her mental impairment will be driven to do so again. In this sense, those found not criminally responsible have generally been detained on the basis of ‘dangerousness’. That is, they are perceived as dangerous individuals who may do harm again. 12 9.21 Justice Cummins set out the process in Re PL: Predicting dangerousness is notoriously difficult. No guarantees ever can be given. Bearing in mind that many applicants have killed, the court moves very cautiously. The court carefully takes into account the circumstances of the original events. On the question of community safety, the court has regard to the length of time between the events and the application because the applicant has been found to have committed the relevant serious actions. The court examines the treatment, insight and progress of the applicant and considers expert evidence from very experienced medical and other professionals. It calls upon its own experience of human behaviour and of recidivism and reformation. Thus the court proceeds with as much responsible data as reasonably can be obtained, to seek to ensure community safety as contemplated by the [CMIA]. However, it must be remembered that applicants found not guilty by reason of mental impairment (or previously insanity) have not been convicted of a crime. Characteristically, they have suffered from a mental illness. The court’s jurisdiction in that respect is protective. It should be remembered that ultimately the best protection for the community is that persons found not guilty by reason of mental impairment are able to return to the community as useful citizens. 13 9.22 Relying on the risk of endangerment could potentially raise a number of issues. 190 11 Ibid s 57(2). 12 Bernadette McSherry, ‘Legal Issues’ (1999) 6 Journal of Law and Medicine 216, 221. 13 Re PL [1998] VSC 209 (15 December 1998) [15].
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2 The CMIA: background and principl
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