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

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9 9.49 Evidently, the emphasis the CMIA places on reports from experts and the people responsible for supervision means that the views of these groups are influential in the decision making of the court. It is therefore important that reports are provided at the right stage of the process, supported by a second report when needed, and are of a high standard. 9.50 Further, it is quite common for someone to be both the person responsible for supervision (for example, the treating clinician) and the expert responsible for preparing reports on the person subject to the supervision order. These people may find themselves in a difficult position where they feel a duty to maintain a confidential and supportive relationship with the person subject to the supervision order, but at the same time are relied on as the main source of information to the court on that person. Question 93 Are changes required to improve the way in which expert reports are provided to the courts If so, what changes are required Influence of decision making on lengths of detention 9.51 Given the concerns over indefinite detention under the Governor’s pleasure regime, there was an expectation that the CMIA would result in shorter periods of detention. 58 Since the CMIA came into operation, however, a number of commentators have observed that an overly cautious approach is being taken in the making and review of supervision orders. 59 9.52 A Victorian PhD study of 146 people found not guilty because of mental impairment between the CMIA’s introduction in 1997 to late 2006 was published in 2010. It found that the time served by many people found not guilty because of mental impairment has actually increased under the CMIA. 60 The study found that the average length to revocation for both violent and non-violent offences was 10.09 years, compared to the average 8.5 years spent under Governor’s pleasure orders between 1946 and 1995. 61 Ruffles says: the establishment of a ‘staggered’ system for release was intended to provide a practical means by which the principle of least restriction could be operationalised, ensuring that community reintegration remains a central aim in the management of forensic patients … However, the finding that periods of detention served by forensic patients have not lessened under the CMIA indicates that legislative measures designed to offset the conservative bias of the risk-based approach have not functioned as intended.’ 62 9.53 The study noted, however, that a number of people who were transitioned from the Governor’s pleasure regime to the CMIA system were included in the collection of data and that this may have led to an inflation of the CMIA period of detention. 63 The people under the Governor’s pleasure regime could have also skewed the results because they were less likely to be released in any case (for example, because they were not responsive to treatment). 58 Freckelton, ‘The Preventive Detention of Insanity Acquitees: A Case Study from Victoria’, above n 16, 87. 59 See, eg, McSherry, above n 12, 221. 60 Ruffles, above n 26. 61 Ibid 166. 62 Ibid 176. 63 Ibid 168. 197
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper 9.54 Further, it may be that while people subject to supervision orders are still subject to orders for long periods, they may be in detention for a shorter period of time than under the Governor’s pleasure system. Freckelton has observed that the Supreme Court has been more liberal in revoking orders from a custodial supervision order to non-custodial supervision order than in revoking supervisory status completely. 64 Another possibility is that decision makers took a more cautious approach when the CMIA was first introduced, but the inertia caused by the Governor’s pleasure system is gradually wearing off. Between 2010–11 and 2011–12, for example, the number of non-custodial supervision orders revoked for forensic patients doubled from five to 10. 9.55 If it exists, it is unclear where the over-cautiousness comes from, but there are a number of possible sources. The process of applying for the variation or revocation of supervision orders, leave and ultimately a release is mainly driven by the opinion of the treating team. Clinicians understandably tread cautiously because of the serious consequences involved if they recommend the premature release of a person. Any missteps could be detrimental not just to the person subject to the supervision order and the general public, but could lead to ‘political disapproval, interference and ultimately undermine service provision’. 65 Further, individual attitudes of clinicians towards the person subject to a supervision order could be a significant factor in whether they apply for a variation or revocation of the order, leave or release. 66 9.56 Another source of possible over-cautiousness may be the approach taken by judges towards the release of a person subject to a supervision order. Discharging a person subject to a supervision order requires taking a ‘step into the unknown’. 67 If there is a judicial tendency towards over-cautiousness, it is understandable given the inability of the evidence before the court to provide it with any certainty of the outcome. 68 9.57 However, cautiousness does not necessarily warrant legislative intervention. Freckelton says: There remains cautiousness in decision-making but that is justified in most instances given the violence engaged in by acquittees and their illness course. … the Victorian experiment in a little over its first decade has suggested that Supreme Court judges for the most part have undertaken the risk-assessment process in a clinically informed and considered way. The outcome has been reintegration of acquittees into the community in a staged process attended by the exercise of caution, but caution that generally has been clinically warranted. 69 9.58 Recidivism rates among people found not guilty because of mental impairment who have been released are low. 70 This could mean that the system is working and courts are detaining people consistently with the principle that restrictions should be kept at a minimum consistent with the safety of the community. However, it could also mean that courts are being overly cautious. Question 94 Is the current approach to decision making in relation to people subject to supervision orders overly cautious 198 64 Freckelton, ‘The Preventive Detention of Insanity Acquitees: A Case Study from Victoria’, above n 16, 94. 65 Carroll, Lyall and Forrester, above n 17, 409. 66 Wendy Northey, ‘Mind Your Attitude: The Fundamental Issue for Clinicians in Offender Rehabilitation’ (2001) 8 (2) Psychiatry, Psychology and Law 197, 199. 67 Freckelton, ‘The Preventive Detention of Insanity Acquitees: A Case Study from Victoria’, above n 16, 95. 68 Ruffles, above n 26, 177. 69 Freckelton, ‘The Preventive Detention of Insanity Acquitees: A Case Study from Victoria’, above n 16, 96. 70 Ibid 214: ‘… of the 41 forensic patients who were granted extended leave while on a custodial supervision order, only two (4.48%) had that leave suspended or revoked on the grounds of the commission of a criminal act, while only two (8.33%) of the 24 forensic patients originally detained under a custodial order but subsequently granted non-custodial status were returned to custodial supervision by reason of the commission of a criminal act. None of these acts involved serious violence’.
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2 The CMIA: background and principl
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