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
3.7 The provisions of the CMIA largely apply to trials and proceedings for indictable offences
in the higher courts (the Supreme Court and County Court). 1 The defence of mental
impairment applies to summary offences and indictable offences heard and determined
summarily in the Magistrates’ Court. 2 However, the unfitness to stand trial process does
not apply in the Magistrates’ Court.
Mental conditions and the criminal justice system
3.8 In examining the pathway created by the CMIA, it is important to understand the
prevalence of mental conditions in the population of people who have contact with the
criminal justice system. This cohort of people presents particular challenges, given their
vulnerability and disadvantage. In recognition of this, specialised approaches are required
in responding to people with a range of different mental conditions in the criminal justice
system including in police practices, the provision of legal advice, court processes and
sentencing.
3.9 Within this cohort, the CMIA has a very strict ambit of application. It only applies to
people whose mental condition is such that it impairs their capacity to stand trial or
provides a defence to a charge. The meaning of the term ‘mental impairment’ under the
CMIA is discussed in Chapter 5.
3.10 The term ‘mental impairment’ is also used in a variety of other contexts, including mental
health, human services and justice sectors. It can have a range of different meanings and
there is significant variation in the definitions in each sector. The term can encompass a
wide range of mental conditions that affect the mental processes or cognitive functioning
of a person, including, but not limited to a mental illness, an intellectual disability or a
cognitive impairment.
3.11 An intellectual disability is a type of cognitive impairment. The Commission’s preliminary
research has identified that there are different issues for people with an intellectual
disability and for people with other cognitive impairments under the CMIA that require
a separate discussion. Therefore, issues relating to intellectual disabilities are discussed
separately to issues relating to cognitive impairments.
3.12 People with mental conditions, such as a mental illness, intellectual disability or
cognitive impairment, that may give rise to a mental impairment are ‘overrepresented’
in the criminal justice system. This means that overall the prevalence of people with
these impairments is higher than it is in the general population. It is estimated that
‘approximately 55% of offenders at court suffer from some form of mental impairment’. 3
This population of people are often vulnerable and disadvantaged, which increases their
risk of contact with the criminal justice system and leads to poorer outcomes.
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1 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 4(1).
2 Ibid s 5(1).
3 Magistrates’ Court Victoria, Submission No IDAJ31 to Law Reform Committee, Parliament of Victoria, Inquiry into Access to and Interaction
with the Justice System by People with an Intellectual Disability and Their Families and Carers, 16 September 2011, 5.