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
4.27 These issues prompt an examination of the current test on unfitness to stand trial,
particularly the criteria that form the basis of the test. The purpose of this section is
to provide an overview of these issues and to ask where the threshold for unfitness to
stand trial should be set, what capacities should be implied in reaching this threshold
and whether any changes can be made to assist experts in assessing unfitness to stand
trial. 37 Consideration of these issues centres on the role of the accused person in the trial
process, in particular, whether they should be an active player or a bare participant, or
whether their role instead is not a static one but fluctuates according to the nature of the
criterion they are required to meet.
Threshold definition
4.28 The CMIA provides that an accused person is unfit to stand trial if ‘because the person’s
mental processes are disordered or impaired …’ the person is unable to satisfy a number
of criteria.
4.29 One issue that has been raised is whether a threshold definition, or a definition of the
mental condition the accused person would have to satisfy to be found unfit to stand
trial, should be included as part of the test for determining unfitness to stand trial.
4.30 Providing for a threshold definition would require the existence of some sort of mental
condition (for example, a mental illness, intellectual disability or cognitive impairment,
depending on what form the definition takes) in addition to an inability to satisfy one
of the capacity-based criteria in the test to be found unfit to stand trial. A threshold
definition may make it easier for juries to understand and apply the test for unfitness to
stand trial because it would provide a link between the accused person’s mental condition
and the criteria for unfitness to stand trial. However, not all accused people who should
be found unfit to stand trial would necessarily have a mental illness, intellectual disability
or cognitive impairment. Some accused people may have a physical condition that would
affect their mental processes to such an extent that they would be unfit to stand trial. In
those cases, including a threshold definition based on mental diagnoses may unduly limit
the application of the unfitness to stand trial test.
4.31 Further, it would be important to exercise caution if introducing a threshold definition
for the unfitness to stand trial test that is similar to the notion of defining ‘mental
impairment’ in the mental impairment defence (discussed in Chapter 5). Applying the
same definition to unfitness to stand trial as the mental impairment defence could blur
the conceptual distinction between the unfitness to stand trial and mental impairment
defence doctrines. For example, there may be certain mental conditions that would have
an effect on a person’s mental processes to the extent that they would be unfit to stand
trial, such as an acquired brain injury. However, the same mental condition may not have
the effect required for the mental impairment defence. An accused person who is unfit
to stand trial does not necessarily qualify for the mental impairment defence, and vice
versa. If a definition was introduced, it would be important to have regard to the different
purpose of each doctrine.
Question
1 Should the test for determining unfitness to stand trial include a threshold
definition of the mental condition the accused person would have to satisfy to
be found unfit to stand trial
58
37 W J Brookbanks and R D Mackay, ‘Decisional Competence and ‘Best Interests’: Establishing the Threshold for Fitness to Stand Trial’ (2010)
12(2) Otago Law Review 265, 265.