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

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Other models of decision making
9.59 If the approach currently taken by decision makers is unduly cautious, the next issue to
consider is whether anything can be done to remedy the over-cautiousness. Part of the
solution may involve giving courts more flexibility in making orders, discussed earlier, that
may make it more likely that the person subject to the supervision order will be shifted out
of the forensic mental health system and into the civil mental health system. In New South
Wales, for example, the Mental Health Review Tribunal can reclassify the forensic patient as
an involuntary patient under the civil mental health system. 71 Another option, also discussed
earlier, could involve changing the matters courts have regard to in making, varying and
revoking supervision orders, for example, by moving from a ‘risk based’ approach to a
‘disorder based’ approach. Changing the way in which courts make decisions may have a
trickle down effect to the way experts and clinicians make decisions as well.
9.60 In the Commission’s preliminary research, there was some suggestion that a specialised
independent court or tribunal should be considered as a way of addressing the possible
over cautiousness. This was based on the notion that this may allow for judges to develop
a higher level of expertise in forensic mental health and the greater involvement of
clinicians in these courts or tribunals.
9.61 There are a number of different models of decision making involving independent courts
or tribunals. For example:
• Queensland has a model where a mental health court makes the initial disposition and
a separate tribunal deals with the review and release of people subject to supervision
orders.
• In New South Wales, the court makes the initial order for supervision, but a separate
tribunal reviews the orders following that initial order.
• In the Australian Capital Territory, the hearing proceeds in court but an administrative
tribunal makes and reviews the order.
9.62 The Queensland Mental Health Court has the jurisdiction to determine unfitness to stand
trial and whether a person is not guilty because of mental impairment. It also has the
jurisdiction to make a ‘forensic order’ to detain a person for involuntary treatment and
care. 72 The court comprises a judicial officer and two psychiatrists. The Mental Health
Review Tribunal then reviews the person under the forensic order at least every six months. 73
9.63 In New South Wales, following a decision by the court, forensic patients are subject to
the jurisdiction of the Forensic Division of the Mental Health Review Tribunal, that has a
specialist forensic division. The Mental Health Review Tribunal has the power to make orders
in relation to the person’s care, detention or treatment and the forensic patient’s release
(either unconditionally or subject to conditions) following an initial review. 74 The Mental
Health Review Tribunal also reviews breaches of conditions of release or leave. 75 Reviews
generally occur every six months but on the application of the patient or the primary carer
of the patient, the Tribunal can extend this period to a maximum of 12 months. 76
9.64 This is in contrast to the approach in the Australian Capital Territory where the court
refers the making of a mental health order to the Civil and Administrative Tribunal. 77 The
Civil and Administrative Tribunal also reviews the mental health orders. 78
9.65 Canada has a similar system to the Australian Capital Territory where each province has
a review board that makes and reviews dispositions of people who have been found not
71 Mental Health (Forensic Provisions Act) 1990 (NSW) s 53.
72 Mental Health Act 2000 (Qld) s 288.
73 Ibid s 187.
74 Mental Health (Forensic Provisions Act) 1990 (NSW) s 44(2).
75 Ibid s 68(1).
76 Ibid ss 46(1), 46(4).
77 Crimes Act 1900 (ACT) ss 318, 319, 328, 329, 335.
78 Mental Health (Treatment and Care) Act 1994 (ACT) s 36L.
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