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 role of lawyers in the process for determining unfitness to stand trial
4.87 The process of determining unfitness to stand trial under the CMIA begins when the
question of an accused person’s unfitness to stand trial arises. Lawyers, particularly
defence lawyers, are often the ones who will raise the question of unfitness to stand trial.
4.88 The Commission’s preliminary research suggests that lawyers who represent accused
people who may be unfit to stand trial often face a number of ethical issues.
4.89 One ethical issue that can arise concerns the decision whether to raise the question of
unfitness to stand trial on behalf of the client and consequently take the client through
the CMIA process. This can be a difficult decision particularly when their client may be
unable to provide instructions concerning what path they want to take. Where this is the
case, a lawyer may be in a position where they have to make a decision on behalf of the
client. In making this decision, a lawyer may feel conflicted between the benefits of the
CMIA process for their client (for example, the availability of a special hearing process and
the absence of recorded conviction and a sentence of imprisonment) and its potential
drawbacks (for example, the indeterminate period of supervision).
4.90 The Law Reform Committee observed:
The primary challenge experienced by lawyers when working with clients with an
intellectual disability or cognitive impairment is that clients often lack the ability to
provide effective and adequate instructions. Conversely, a lawyer may lack experience
working with people with intellectual disabilities or cognitive impairments, and may not
communicate effectively with the client. 116
4.91 Another ethical issue that may arise quite frequently involves the difficulty experienced
by lawyers in obtaining instructions from clients on how to proceed in a special hearing
after they have been found unfit to stand trial. For example, the client may be unable to
instruct their lawyer on whether they want to raise any defences to the charge, such as
the mental impairment defence, which raises questions about the obligations of lawyers
in these circumstances.
Questions
17 What ethical issues do lawyers face in the process for determining unfitness to
stand trial
18 What is the best way of addressing these ethical issues from a legislative or
policy perspective
72
116 Ibid 205.