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
Effective participation
4.42 Scotland, in contrast to England and Wales, has introduced legislation based on an
accused person’s effective participation. The approach captures ‘the notion of full
or rational appreciation by the accused of the proceedings’. 60 The New South Wales
Law Reform Commission in its consultation paper People with Cognitive and Mental
Impairments in the Criminal Justice System: Criminal Responsibility and Consequences,
however, noted a number of weaknesses with this approach including the risk that it
would be overly inclusive and require a level of knowledge or competence that would go
beyond rational decision making. 61
Question
6 If not decision-making capacity, should the test for unfitness to stand trial
include a consideration of the accused person’s effective participation
Rationality
4.43 The terms of reference ask the Commission to consider recommendations made by the
Victorian Parliament Law Reform Committee in its Inquiry into Access to and Interaction
with the Justice System by People with an Intellectual Disability and their Families and
Carers. The Law Reform Committee recommended that the Victorian Government
consider amending the CMIA to require the court, when considering unfitness to stand
trial, to determine:
• the ability of the accused person to understand or respond rationally to the charge, or
• the ability of the accused person to exercise or to give rational instructions about the
exercise of procedural rights. 62
4.44 The Law Reform Committee noted that the current test in Victoria, that focuses on the
ability of the accused person to understand court processes and give instructions to a
lawyer, ‘sets a low threshold for determining the fitness’ of the accused person.
4.45 This section considers whether an accused person’s rationality should be taken into
account in some way in an assessment of unfitness to stand trial. The Commission is
interested, in particular, whether:
• the existing Presser criteria for unfitness to stand trial in the CMIA should be qualified
by a requirement that an accused person must, where relevant, exercise these
rationally (for example, an accused person’s inability to give rational instructions to
their legal practitioner would make them unfit to stand trial)
• any new test based on a person’s decision-making capacity or effective participation
should require that capacity or participation to be exercised rationally
• rationality should be taken into account in determining unfitness to stand trial in some
other way.
4.46 As discussed earlier, the test in the United States requires the ability to instruct a lawyer
with a reasonable degree of rational understanding. In Scotland, the Scottish Law
Commission, which formulated its test based on the European Convention of Human
Rights, recommended that effective participation should capture the notion of full
62
60 Scottish Law Commission, Report on Insanity and Diminished Responsibility, Report No 195 (2004) 48.
61 New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal
Responsibility and Consequences, Consultation Paper No 6 (2010) 10.
62 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 (2013) 231.