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

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9.23 First, it is difficult to demonstrate that a person subject to a supervision order will
not pose a serious or likely danger following a change in the level of supervision. As
Freckelton observes, having to satisfy a ‘negative’ or that something will not happen, is
difficult to prove. 14
9.24 Secondly, assessing dangerousness could be subject to much subjective interpretation—
assessing future risk requires the court to embrace notions of uncertainty and to consider
the ‘likelihood of such [future] risk becoming a reality’. 15 The interpretation of the term
‘serious endangerment’ has been ‘somewhat elastic’. 16 The CMIA does not define what
the term means, for example, whether it requires the endangerment to be physical
or psychological, or whether it requires the risk that an actual violent offence will be
committed (as opposed to a non-violent offence). The use of ‘likely to endanger’ in
some parts of the CMIA and ‘seriously endanger’ in others also implies that different
thresholds for court intervention apply at different stages of the process, that could add
to the subjectivity.
9.25 Thirdly, using dangerousness as the basis of a decision raises the question of whether
this could lead to overly cautious decision making (discussed later in the chapter at
[9.51]–[9.58]) and if this is the case, whether the criteria the court considers should be
based on something other than dangerousness. Carroll, Lyall and Forrester distinguish
between two types of legislation: ‘disorder’ based legislation and ‘risk’ based legislation.
9.26 The ‘disorder’ based approach, taken in England and Wales and some jurisdictions in the
United States, relies on the same criteria for the detention of forensic patients as for civil
patients. This approach requires an ongoing mental disorder. 17 In England and Wales,
the Mental Health Review Tribunal must discharge a person subject to an unrestricted
hospital order on a number of criteria. The person must be discharged if the Tribunal is
not satisfied:
• that they are suffering from a mental disorder that makes it appropriate for them to
be detained in a hospital
• that it is necessary for the health or safety of the patient or of other people
• that appropriate medical treatment is available for them. 18
9.27 Further, in that jurisdiction the court may revoke a supervision order if it would be in the
interests of the health or welfare of the person. 19
9.28 Victoria adopts the ‘risk based’ approach. Under this approach the criteria for detention
and supervision relate not to the persistence of the person’s mental disorder, but to the
risk of harm to others (and, to self, in some cases). 20
9.29 Some other Australian jurisdictions use the ‘risk’ based approach. However not all of them
use ‘danger’ as the basis for their tests. In Western Australia, for example, the Mentally
Impaired Accused Review Board considers ‘the degree of risk that the release of the
accused appears to present to the personal safety of people in the community or of any
individual in the community’ when deciding whether to grant leave. 21 In Queensland, the
Mental Health Court must not revoke a forensic order ‘unless it is satisfied the patient
does not represent an unacceptable risk to the safety of the patient or others’. 22
14 Ian Freckelton, ‘Applications for Release by Australians in Victoria Found Not Guilty of Offences of Violence by Reason of Mental Impairment’
(2005) 28 International Journal of Law and Psychiatry 375, 383.
15 Re LN [1999] VSC 144R (6 May 1999) [6].
16 Ian Freckelton, ‘The Preventive Detention of Insanity Acquitees: A Case Study from Victoria’ in Bernadette McSherry and Patrick Keyzer
(eds) Dangerous People: Policy, Prediction and Practice (Routledge, 2011) 89.
17 Andrew Carroll, Mark Lyall and Andrew Forrester, ‘Clinical Hopes and Public Fears in Forensic Mental Health’ (2004) 15(3) Journal of Forensic
Psychiatry and Psychology 407, 417.
18 Mental Health Act (UK) s 72(1).
19 Criminal Procedure (Insanity) Act 1964 (UK) sch 1A cl 9(1).
20 Carroll, Lyall and Forrester, above n 17, 418. New South Wales has a similar approach to Victoria. Section 39(2) of the Mental Health
(Forensic Provisions) Act 1990 (NSW) requires the court to be satisfied that ‘the safety of the person or any member of the public will not be
seriously endangered by the person’s release’.
21 Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 28(3).
22 Mental Health Act 2000 (Qld) s 204.
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