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

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3 3.38 People with a cognitive impairment, such as an acquired brain injury can experience a range of disadvantages, which can increase the risk that they will become involved in the criminal justice system. For example, many people with an acquired brain injury who have contact with the criminal justice system face a range of complex circumstances and have complex needs, which can be exacerbated by that contact. They may also experience co-existing mental illness, alcohol or drug dependence, health complaints, breakdown of the family unit or unstable accommodation. 44 3.39 There is no clear causal link between acquired brain injury and offending. Nevertheless, some of the cognitive-behavioural changes that commonly occur with an acquired brain injury can increase the risk of a person’s contact with the criminal justice system. These include disinhibition and impaired impulse control, poor social judgement, lowfrustration tolerance and anger and aggression. 45 However, the Law Reform Committee noted that people with a cognitive impairment ‘tend to have a more diverse range of lived experiences … These experiences could include more formal education and training, employment, and long-term relationships with spouses and friends’. 46 Fetal alcohol spectrum disorder 3.40 Another cognitive impairment that has prompted recent concern regarding contact with the criminal justice system is fetal alcohol spectrum disorder. This impairment is associated with excessive consumption of alcohol by mothers during pregnancy. It can result in particular physical features and ‘a complex pattern of cognitive impairments, including learning difficulties, poor impulse control and deficits in capacity to exercise judgment, social abstraction, language expression and memory’. 47 3.41 Fetal alcohol spectrum disorder is a ‘functional impairment’ that affects the executive functions of a person such as decision making and interaction with others. 48 It is one of the foremost non-genetic causes of intellectual impairment. 49 Fetal alcohol spectrum disorder has been identified as a significant issue in some Indigenous communities in Australia, 50 although ‘it is no means confined to them’. 51 In Victoria, it occurs equally in Indigenous and non-Indigenous births. 52 3.42 There is little data on the prevalence of the disorder Australia-wide or in the criminal justice population in the Australian, or Victorian, context. 53 However, two Commonwealth Parliamentary Standing Committees have recognised the connection between fetal alcohol spectrum disorder and the involvement of young people with the criminal justice system. 54 Most recently, in 2012 the Standing Committee on Social Policy and Legal Affairs in its report on a national approach to the prevention, intervention and management of fetal alcohol spectrum disorder recommended that it be recognised that people with fetal alcohol spectrum disorder have a cognitive impairment. 55 44 Brown and Kelly, above n 36, 5. 45 Edgar Miller, ‘Head Injury and Offending’ (1999) 10(1) Journal of Forensic Psychiatry and Psychology 157. 46 Law Reform Committee, above n 23, 40–1. 47 Ian Freckelton, ‘Fetal Alcohol Spectrum Disorder and the Law in Australia: The Need for Urgent Awareness and Concern to Translate into Urgent Action’ (2013) 20 Journal of Law and Medicine 481, 482. 48 Dr J Mein, Medical Officer, Apunipima Cape York Health Council, Committee Hansard, House Standing Committee on Social Policy and Legal Affairs, Inquiry into Fetal Alcohol Spectrum Disorders, 31 January 2012, 17. 49 Ernest L Abel and Robert J Sokol, ‘Fetal Alcohol Syndrome is Now Leading Cause of Mental Retardation’ (1986) 328 (8517) Lancet 1222. 50 Priscilla Pyettfor et al, Fetal Alcohol Syndrome: A Literature Review for the ‘Healthy pregnancies, healthy babies for Koori communities’ project (Premier’s Drug Prevention Council, Department of Human Services, March 2007) 5. 51 Freckelton, above n 47, 484. 52 Kelly Allen et al, ‘Estimating the Prevalence of Fetal Alcohol Syndrome in Victoria Using Routinely Collected Administrative Data’ (2007) 31 Australian and New Zealand Journal of Public Health, 62–66. 53 Freckelton, above n 47, 485. 54 Parliament of Australia, House of Representatives, Standing Committee on Aboriginal and Torres Strait Islander Affairs; Parliament of Australia, House of Representatives, Standing Committee on Social Policy and Legal Affairs. 55 Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, Inquiry into Fetal Alcohol Spectrum Disorders (2012) [5.139]. 39
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper The CMIA cohort 3.43 The cohort captured by the CMIA is a very small proportion of the total number of people who come into contact with the criminal justice system and have a mental condition. 3.44 The CMIA applies to a particular group of people who are charged with a criminal offence and who because of a mental condition are found upon specific criteria to be unfit to stand trial or not guilty because of mental impairment. 3.45 Within the cohort of people subject to the CMIA, a further division can be made based on the particular mental condition that underlies a finding of unfitness to stand trial or the particular mental impairment that underlies a finding of not guilty because of mental impairment. The population of people who have a mental condition and are subject to the CMIA can be broken into two smaller cohorts based on the type of mental condition and the different assessment, treatment and support needs of each group. People in each cohort may also follow a different ‘pathway’ through the CMIA according to the nature of the mental condition, their ability to progress through the system and the services and treatment that may be available. They are: • people with a mental illness, and • people with an intellectual disability or cognitive impairment. 3.46 Cases involving co-occurring mental conditions, such as an intellectual disability and mental illness, are also particularly complex in the CMIA cohort. Characteristics of the CMIA cohort 3.47 In 2010, Ruffles published a study of the period to November 2006, of people in Victoria who had been found not guilty because of mental impairment. The study included some people who were being supervised under both the Governor’s pleasure regime and the CMIA. The study gave some indication of the characteristics of the cohort. However, the study did not include people found unfit to stand trial so it does not give a complete picture. 3.48 Of the 146 people included in the study: • 98 had been detained under a custodial supervision order (45 were given a disposition under the Governor’s pleasure regime and 53 were given a custodial supervision order under the CMIA) • 48 were given a non-custodial supervision order. 40
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