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
Other factors that affect decision making
9.38 The criteria in section 40 of the CMIA attempt to strike a balance between the person
subject to the supervision order’s freedom and the safety of the community. As McSherry
observes:
The problem really lies in drawing up appropriate criteria which will lead to the detention
of those who really may do harm in the future, whilst allowing for the absolute discharge
of those who do not pose a risk to the public. 34
9.39 Aside from the likelihood of danger and the matters in section 40 of the CMIA, decisions
in CMIA matters provide further insight into the other factors that play a role in the
court’s decision making. These include:
• The nature of the person’s mental impairment—while this is one of the matters
section 40 includes, courts also consider related issues such as the person’s
responsiveness to treatment, 35 control of any ongoing symptoms 36 and the person’s
compliance with medical treatment. 37
• The person’s insight—the CMIA does not require the court to consider insight,
however, courts often look into the level of insight the person has into their mental
illness and into the circumstances of the offence. 38
• The ability to monitor any re-emergence of symptoms 39 —courts have considered, for
example, the ability of the treating team to apprehend the person or suspend leave if
necessary. 40
• The views of psychiatrists—the opinions of the supervising clinicians which they
present through their reports and by giving evidence in court are influential in the
court’s decision making. 41
• The person’s previous downgrading of supervision—courts consider, for example,
development of rapport with treating team, 42 tendency to use drugs and alcohol, 43
and the willingness of the person to self-report to their area mental health service if
they relapse. 44
• The likelihood of care in the civil mental health system 45 —courts have also considered
whether the person could be detained under the Mental Health Act when deciding
whether to vary an order. 46
Question
91 Should the CMIA provide more guidance to the courts on the factors relevant
to making, varying and revoking orders and applications of leave If so, what
guidance should be provided
194
34 McSherry, above n 12, 221.
35 See, eg, Re PEL [1999] VSC 532R (13 December 1999) [19] (Ashley J).
36 Re NR [2004] VSC 2R (16 January 2004).
37 Re EKW (No 2) [2001] VSC 122R (23 April 2001).
38 Freckelton, ‘Applications for Release by Australians in Victoria Found Not Guilty of Offences of Violence by Reason of Mental Impairment’,
above n 14, 392. See also Re PSG [2005] VSC 325R (19 August 2005) [13] (Kaye J).
39 Freckelton, ‘The Preventive Detention of Insanity Acquitees: A Case Study from Victoria’, above n 16, 94.
40 Re TEK [2003] VSC 132R (6 May 2003) [47].
41 Re GM [2000] VSC 338R (29 August 2000) [67].
42 Re TLB (No 2) [2003] VSC 204R (11 June 2003).
43 Ibid.
44 Re TDD [2003] VSC 504R (12 November 2003).
45 Freckelton, ‘Applications for Release by Australians in Victoria Found Not Guilty of Offences of Violence by Reason of Mental Impairment’,
above n 14, 395.
46 See, eg, Re EKW [1998] VSC 176R (8 December 1998); Re TDD [2004] VSC 504R (12 November 2003).