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
The CMIA pathway
3.54 The CMIA governs the process from the time a person charged with an offence appears
in court. However, if a person has a mental condition, their pathway to the CMIA may
commence at some point prior to their first contact with the criminal justice system and
may in fact be precipitated by a lack of contact with other services, such as mental health
or disability services.
3.55 This section provides an overview of the specialised pathway created by the CMIA.
A flowchart of the CMIA pathway is contained in Appendix A.
What is the first point of contact for a person under the CMIA
3.56 For a person subject to the CMIA, police officers are likely to be the first point of contact
with the justice system. Police have a ‘gatekeeper’ role in the exercise of their discretion in
conducting investigations and in charging an accused person.
3.57 Police also play a pivotal role in the identification of people who come into contact
with the justice system and may have a mental illness, intellectual disability or cognitive
impairment. Early identification of these mental conditions is integral to the fairness of the
investigation process and can be crucial to what happens to a person in later stages of the
process.
3.58 The profile of the typical person who has been found not guilty because of mental
impairment in Ruffles’ study, suggests that many people who become subject to the
CMIA will have had prior contact with mental health or disability services. However, in
some cases, it may in fact be a lack of current contact with the appropriate services that
has resulted in an unidentified or relapsed mental illness or a lack of supports around
a person with an intellectual disability or cognitive impairment, which has ultimately
resulted in behaviour that constitutes offending, often very serious.
3.59 A person’s entry into the CMIA pathway provides an opportunity for a person who
requires treatment and support from mental health and disability services to be
connected, or re-connected, to those services.
Identification of mental illness
3.60 Current police procedure for identifying people who may have a mental health issue
or a cognitive impairment is through observation and investigation of previous contact
with the justice and mental health system. Police will observe ‘their words or actions,
by asking the person directly, by checking police records of any previous interactions, or
by contacting their nearest Mental Health Triage to check whether the person is, or has
been, a patient of a mental health service’. 61
3.61 A forensic medical officer can undertake an assessment and provide clinical advice on
whether a person is fit for a police interview, fit for charging or fit to plead in court.
The outcome of the assessment can be used as evidence in court. 62 In undertaking an
assessment, the forensic medical officer will assess, among other things, the person’s
ability to understand the nature of the questioning, the ability to follow questioning,
give instructions to legal representation and understand when they are being given a
caution. 63
42
61 Department of Health and Victoria Police, Protocol for Mental Health (Victorian Government, 2010) 10.
62 Ibid.
63 Ibid. To avoid unreasonable delay where a forensic medical officer is available, police may also request a forensic assessment from an Area
Mental Health Service clinician.