Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Report (html)

12. Conclusion

12.1 This report presents the Commission’s findings and recommendations following its extensive review of the operation of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘CMIA’). The Commission has considered and responded to the issues in the terms of reference and supplementary terms of reference for the review. The report contains a package of recommendations aimed to improve the operation of the CMIA as a whole across all levels of Victorian courts, as well as recommendations to address discrete legal and process issues.

12.2 The CMIA governs an important area of the law where a person has been charged with an offence but their capacity to stand trial or their criminal responsibility is significantly limited by mental illness or disordered or impaired cognitive functioning. It seeks to ensure an appropriate response in terms of protection of the community, through supervision, treatment and support of that person with the aim that they can be restored as a functioning member of society. It is critical in this area that the right balance is struck to acknowledge the harms that have occurred, ensure protection of the community and monitor the restrictions placed on the liberty of a person subject to the CMIA. The Commission is therefore pleased to have had the opportunity to consider and make proposals on how to improve the operation of the CMIA. Improvements have been proposed for the benefit of the community, in particular people who are directly affected by these laws. This includes people subject to the CMIA and their family members,

and victims and their families. Proposals for reform are also made to improve the functioning of the systems and services that support the operation of the court legislation, including the courts, legal profession, and forensic mental health and disability service and treatment providers.

12.3 A number of the Commission’s recommendations in this report echo the 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. They reinforce the need, identified by the Law Reform Committee, for reform to improve the operation of the CMIA on people with an intellectual disability or other cognitive impairment.

12.4 In making its recommendations, the Commission has had regard to the cost implications of the changes proposed to the CMIA, without them being determinative of the Commission’s views and decisions. Where the resource implications of a recommendation can be identified and quantified, the Commission has done so throughout the report. While it is not possible, nor within the terms of reference, for the Commission to have undertaken a comprehensive costing of its recommendations as a whole, some key resource implications are noted.

12.5 The University of Melbourne’s work estimates that the significant changes recommended by the Commission to extend the operation of the CMIA in the Magistrates’ and Children’s Courts will result in significant cost savings through the creation of a more economical court hearing process, where appropriate, that does not involve committal stages, jury involvement and the higher personnel and legal costs in the County Court jurisdiction. While it has not been possible to predict whether there will be increases in CMIA matters under its expanded jurisdiction, it is estimated that significant ‘net widening’ would be required to diminish these cost savings. It is acknowledged that resources will be required to establish and maintain the operation of the CMIA in the Magistrates’ Court and Children’s Court, which may offset some of the identified cost savings. However, establishing processes that support the operation of the CMIA to deliver an early and appropriate response will maximise the opportunities to address issues such as mental illness and cognitive impairment including intellectual disability underlying offending behaviour. This will have long-term benefits in terms of reducing government costs associated with later interventions, increasing individual well-being and preventing entrenchment in forensic mental health and disability pathways.

12.6 The Commission has made recommendations on the basis of principle to change the process by which issues of unfitness to stand trial and the defence of mental impairment are determined, and to give effect to the Commission’s view about the proper role of the jury in the criminal process under the CMIA. However, the Commission notes cost implications of changing the role of the jury. The removal of the jury in determinations of unfitness to stand trial will result in significant cost savings by reducing the specific costs associated with jurors, as well as reducing the broader costs incurred to employers through a loss of productivity. However, costs saved through this process are likely be offset by the Commission’s recommendation to remove the provisions allowing a judge-alone determination of the defence of mental impairment and to require a jury

in all cases.

12.7 The Commission has made a number of recommendations for the delivery of education and training to increase the expertise and awareness of people who work under the CMIA provisions, including judges, legal practitioners, clinicians who provide expert services and service providers who supervise people on orders. These will have cost implications for a range of organisations who will deliver and support such training, including the Judicial College of Victoria, Law Institute of Victoria, the Victorian Bar, the Victorian Institute of Forensic Mental Health (Forensicare), the Department of Health and the Department of Human Services.

12.8 A number of the recommendations made by the Commission address the gaps identified in the support or assistance provided to individuals affected by CMIA processes, in particular:

• in-court support measures and education programs for people to optimise the fitness of those who are charged with offences

• the continuation and expansion of the Mental Health Court Liaison Services (MHCLS) program in the Magistrates’ Court

• a case worker program for the diversion of young people appearing in the Children’s Court who raise issues of unfitness to stand trial or the defence of mental impairment

• a specialised victim support scheme for victims of crime in CMIA matters.

12.9 The Commission acknowledges that these recommendations will have cost implications. However, almost all recommendations seek to introduce a reform aimed at preventing a person from proceeding down the current costly CMIA pathway. For example, if a person is provided with in-court support and proceedings can be modified in a way which enables them to become fit to go through the trial process, this will avoid a finding of unfitness and possible indefinite supervision order.

12.10 Resources will be required for the Commission’s recommendations that address the gaps in the facilities and services that support the supervision and management of people subject to the CMIA. In particular, there will be cost implications for government to:

• commission work to develop a model of care and establish a youth forensic facility to address the critical gap in forensic mental health and disability services for young people under the CMIA

• commission a review of current forensic disability services for adults to identify appropriate models of care for people with an intellectual disability or other cognitive impairment who are subject to the CMIA

• establish a new medium-secure mental health facility for adults with a mental illness subject to the CMIA.

12.11 Despite the cost implication, the Commission’s view is that an appropriate youth forensic facility is needed to ensure that the operation of the CMIA is consistent with community protection, the principle of least restriction and the specialised approach required for vulnerable young people in the criminal justice system. A review of the current forensic disability services for adults seeks to ensure proper planning around the service needs for people under the CMIA and to avoid the current costly ad hoc approaches that have been required when there is no appropriate accommodation. The establishment of a new medium-secure facility for adults with a mental illness will provide a more economic and flexible alternative for people who are not required to be accommodated in the high-secure environment of Thomas Embling Hospital and who require a short period of custodial supervision after breaching a supervision order.

12.12 In conclusion, while many of the recommendations in this report will require resources in their implementation, the Commission’s view is that their implementation will have lasting benefits from both a financial and human perspective, through early and appropriate intervention of the law, and importantly for community safety.