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

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9 Principles and matters the Forensic Leave Panel considers 9.40 In leave applications, the authorised psychiatrist or Secretary to the Department of Human Services must grant an application for special leave if satisfied that the safety of members of the public will not be seriously endangered. 47 The Forensic Leave Panel may grant an application for on-ground leave or limited off-ground leave if satisfied the safety of the forensic patient or forensic resident or members of the public will not be seriously endangered as a result of the leave. 48 Dangerousness as a factor in decision making was discussed in this chapter at [9.20]–[9.37]. Guidance for making decisions about leave 9.41 One issue that arises for consideration is whether the CMIA provides sufficient guidance to the Forensic Leave Panel for making decisions on leave. The Review Panel Appointed to Consider Leave Arrangements for Patients at the Victorian Institute of Forensic Health (Vincent Review) recommended that the government consider whether to amend the CMIA to ensure that the Forensic Leave Panel considers specific criteria before granting leave. 49 Previously, the main criteria for deciding whether or not to grant leave were based on the dangerousness of the person. The Vincent Review noted that while the Supreme Court had provided some guidance on the statutory interpretation of that provision, there was still some uncertainty in its interpretation that would benefit from clarification. 50 9.42 The legislature amended the CMIA to implement the recommendation by the Vincent Review. Now the CMIA also requires the Forensic Leave Panel to have regard to the person’s current mental condition or pattern of behaviour, clinical history, social circumstances and the applicant profile and leave plan. 51 9.43 There is more guidance for the Forensic Leave Panel following the amendments to the CMIA. However, this guidance is not as extensive as the guidance provided to courts in section 40 for a decision to make, vary or revoke a supervision order or to grant or revoke extended leave. 52 Question 92 Is there a need for additional legislative guidance for the Forensic Leave Panel in making leave decisions If so, what guidance should be provided 47 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 50(3). 48 Ibid s 54. 49 Review Panel Appointed to Consider Leave Arrangements for Patients at the Victorian Institute of Forensic Health, Report (2001) 22. 50 Ibid 21–2. The provision has changed since the Review Panel’s report. The CMIA used to provide that the Forensic Leave Panel must not grant leave unless satisfied that the safety of the forensic patient or forensic resident and members of the public will not be seriously endangered as a result of the their leave. Now the CMIA provides that the court may grant an application if satisfied on the evidence available that the safety of the forensic patient or resident or members of the public will not be seriously endangered as a result of their leave. 51 Crimes (Mental Impairment and Unfitness to be Tried) Act (Vic) s 54(4). 52 Ibid s 40. 195
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper Role of experts and people responsible for supervision 9.44 The CMIA introduced a comprehensive system for the provision of expert reports. Reports play a number of roles: • to communicate information • to prepare the ground for giving evidence in court • to facilitate treatment • to demonstrate the proper conduct of the expert assessment • to aid the measurement of clinical and forensic practice. 53 9.45 An expert prepares a report if a person is declared to be liable to supervision that contains information on: • a diagnosis and prognosis of the condition or an outline of the person’s behavioural problems • the person’s response to treatment, therapy or counselling (if any), and • a suggested treatment or other plan for managing the condition. 54 9.46 The report must be filed within 30 days after the declaration or within a longer period if the court allows it, 55 but generally these reports are filed very early in the process. 9.47 Routine reports must then be prepared and filed with the court (at intervals not exceeding 12 months for the duration of the order) containing: • a statement of any treatment, therapy or counselling that the person has undergone, or any services that the person has received, since the making of the order or last report • any changes to the prognosis of the person’s condition or the person’s behavioural problems and the plan for managing the condition or problems. 56 9.48 Under the CMIA, the court cannot order a person’s unconditional release, or significantly reduce the level of supervision the person is subject to, unless it: • has obtained and considered a report from an expert who has personally examined the person’s mental condition and the possible effect of the proposed order on the person’s behaviour • has obtained and considered the report of a person having the supervision of the person subject to the order where relevant • has considered the section 41(1) or (3) report submitted to the court (that is, the report prepared when the person was declared liable to supervision, and the annual reports prepared following that initial report) • has considered the leave plan filed in the case of an application for extended leave • has obtained and considered any other reports it thinks necessary. 57 196 53 Kenneth J Weiss et al, ‘History and Function of the Psychiatric Report’ in Alec Buchanan and Michael A Norko (eds), The Psychiatric Report: Principles and Practice of Forensic Writing (Cambridge University Press, 2011) 11, 17. 54 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 41(1). 55 Ibid s 41(2). 56 Ibid s 41(3). 57 Ibid s 40(2).
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