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
Suitability of the system for people with an intellectual disability
or cognitive impairment
9.105 The CMIA is modelled on a gradual or staggered system of release, based on the
expectation that the person subject to the supervision order will recover and be
reintegrated into the community. Both people with a mental illness and people with
intellectual disabilities or cognitive impairments come under the CMIA system, unlike the
New Zealand system, for example, which has created a separate disposition process for
people with an intellectual disability. 131
9.106 Some commentators have suggested that this gradual or staggered system of release was
constructed for people with mental illnesses but is less suitable for people with intellectual
disabilities or cognitive impairments:
there remains something about the machinery of the CMIA and/or its application that
discriminates against the potential for intellectually disabled acquittees to move through
its staggered system of release … It is submitted that the answer lies in the fact the very
structure of the CMIA is uniquely skewed towards the disposition and management of
forensic patients who have been acquitted on the grounds of mental illness. That is, the
Act, as reflected in the staggered system of release and discharge, is built on concepts
such as treatment, relapse and remission, all of which are central to the management
of mentally ill persons but are largely inapplicable to intellectually disabled forensic
residents, who by definition, have no prospect of complete recovery and have different
management needs. 132
9.107 Of the 10 forensic residents included in the study referred to in [9.52] above, no one had
their supervision order revoked. 133 The Forensic Leave Panel’s annual reports show that
only two or three forensic residents have applied for leave each year since 2002.
9.108 The current system of supervision could be unsuitable for people with intellectual
disabilities and cognitive impairments, for a number of reasons aside from the staggered
nature of the system. First, the criteria for decision making may have been tailored for
people with a mental illness. Section 40, for example, requires the court to consider
the nature of the person’s mental impairment. In considering the nature of the person’s
mental impairment, courts have generally looked at the resolution of any symptoms.
People subject to supervision orders with intellectual disabilities or cognitive impairments
may not pursue leave or a variation or revocation of their order because of the difficulty in
demonstrating that there has been an improvement in their mental impairment.
208
131 See Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (NZ).
132 Ruffles, above n 26, 204.
133 Ibid 203.