Fitness to stand trial and the defence of mental impairment

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It is presumed at law that people have capacity to enter a plea when appearing before a court. As a general rule, most people with an intellectual or psychiatric disability are likely to be able to plead in a court. But sometimes they cannot. In this situation it is up to the party who asserts that a plea cannot be entered to prove this, and therefore rebut the presumption (show it does not apply).

The law in relation to fitness to plead – including the common law defence of insanity, and the legal status of indefinite detention at “the Governor’s pleasure” – was reformed with the passage of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“CMIUTA”). The CMIUTA:

defines the criteria for determining if a person is unfit to stand trial;

replaces the common law defence of insanity with a statutory defence of “mental impairment”; and

provides new procedures for dealing with people who are unfit to stand trial or are found not guilty because of mental impairment.

Fitness to stand trial

A person is unfit to stand trial for an offence if their mental processes are so disordered during the trial that they are unable to:

understand the nature of the charge;

enter a plea to the charge and exercise the right to challenge jurors or the jury;

understand the nature of the trial (i.e. it is an enquiry into whether or not the person comitted the offence);

follow the course of the trial;

understand the substantial effect of any evidence that may be given in support of the prosecution;

give instructions to their legal practitioner (s 6 CMIUTA).

But, a person is deemed to be not unfit to stand trial only because they are suffering from memory loss (s 6(2)).

Procedures

Where a person is found unfit to plead – and the judge determines that the defendant is unlikely to become fit within the next 12 months – the court must hold a special hearing (pt 3, ss 16–18 CMIUTA) a court may adjourn the matter or hold a special hearing (ss 12–18 CMIUTA) to determine whether the person would be found:

not guilty of the offence;

not guilty because of mental impairment; or

to have committed the offence.

Under the CMIUTA, a finding that the person committed the offence constitutes a qualified finding of guilt only.

In the Magistrates’ Court, if a person is found not guilty because of mental impairment, they must be discharged by the court. Therefore, a mental impairment defence ought to be thoroughly explored, and clients advised of its benefits.

However, there is a risk that the Office of Public Prosecutions (OPP) will try to get the matter heard in a higher court, where conditions can be placed on an order or a custodial or non-custodial supervision order can be made. This is a serious risk, and there are important legal factors that must be considered in raising this defence in the higher courts.

Defence of mental impairment

As noted, if there is a connection between the doing of the act for which the person is charged and their mental impairment, then they may be eligible for a defence of mental impairment (s 20 CMIUTA). If this defence is established, that person must be found not guilty because of mental impairment.

A defence of mental impairment requires the client’s instructions, and evidence from the treating practitioner, that at the time of the offence, the person was experiencing a mental impairment that had the effect that:

the person did not know the nature and quality of the conduct; or

the person did not know that the conduct was wrong (that is, they could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

It is imperative to any mental impairment defence that an assessment of the offender’s mental state takes place as soon as possible after the alleged commission of the crime. A report obtained with hindsight, and therefore lacking the required proximity to the alleged offence, may not have sufficient weight for a successful defence. An offender with a disability could seek to use the Charter, either section 8 or section 22 (the right to liberty and security), if a report was not obtained as soon as possible, hence jeopardising a successful defence.

It is vital for a person to have proper legal advice about the defence of mental impairment, given the serious legal implications, especially if the matter is heard in the higher courts.

Custodial and other supervision orders

No more indefinite detention

Unlike the old “Governor’s pleasure” orders – that were indefinite detention orders – a person found not guilty by reason of mental impairment at a criminal trial in the County Court or Supreme Court is now given a fixed nominal term supervision order. The term of the order is set out in section 28 of CMIUTA – this section must be read in conjunction with the Crimes Act 1958 (Vic). A supervision order can be either custodial or non-custodial (s 26 CMIUTA).

A person subject to such an order is classified under the Mental Health Act 2014 (Vic) (“MHA 2014”) as a forensic patient, or under the Disability Act 2006 (Vic) (“Disability Act”) as a forensic resident (seeIntellectual disability”). Those subject to supervision orders under the Crimes Act 1914 (Cth) are referred to as Commonwealth forensic patients.

Provisions relating to supervision orders for those who have an intellectual disability have been inserted into the Disability Act to ensure that the person receives appropriate assistance from intellectual disability services (see Intellectual disability).

Variation and revocation of supervision orders

A person subject to a supervision order can apply to the court for variation or revocation (cancellation) of the supervision order under CMIUTA.

In considering the revocation or variation of a custodial supervision order, the court must be satisfied that “the safety of the person subject to the order or members of the public will not be seriously endangered”. This test is viewed conservatively, and is open to challenge by applying section 12 (the right to freedom of movement) of the Charter. A major review of the person’s order must be carried out by the court after a defined nominal term (e.g. 25 years in the case of murder), although a person may apply earlier to the court for a variation or revocation of their order.

Leave

A person on a custodial supervision order is entitled to apply for leave. CMIUTA (pt 7 div 1) sets out procedures for the release and the granting of leave to forensic patients and forensic residents. There are four kinds of leave available.

1  Special leave

A forensic patient or forensic resident may apply for special leave of absence, specifying the special circumstances for which the leave is required (that is, for up to seven days for medical treatment, and up to 24 hours in other cases), which can be granted by the authorised psychiatrist, or the Office of the Department of Health and Human Services.

In making a decision about special leave, the psychiatrist must consider whether the safety of members of the public will be seriously endangered. If special leave is not granted, a person can appeal to the Forensic Leave Panel, established at section 59 of the CMIUTA, and is made up of the Chief Psychiatrist or their nominee, an experienced forensic psychiatrist and a community member, and is headed by a Supreme or County Court judge. The panel also hears applications for on-ground or limited off-ground leave.

2  On-ground leave

On-ground leave allows a forensic patient or forensic resident to be absent from the place of custody while remaining within the surrounds. “The surrounds” means “… an area surrounding or adjacent to an approved mental health service or a residential service to be the surrounds in relation to that approved mental health service or residential service” (s 52(2) CMIUTA).

3  Limited off-ground leave

Limited off-ground leave allows a forensic patient or forensic resident to be absent from the place of custody between the hours of 7.30 am and 7.30 pm for a maximum of three consecutive days in any seven day period (s 53 CMIUTA). This leave is granted by the Forensic Leave Panel.


NOTE

The Chief Psychiatrist can suspend special leave, on-ground leave and limited off-ground leave if they believe that the safety of the person or of members of the public will be seriously endangered. (For more information on the role of the Chief Psychiatrist, see Mental illness.)


4  Extended leave

A person on a custodial supervision order can apply to the court in which the order was made for extended leave. This type of order allows the forensic patient to live in the community, with conditions. Extended leave can be granted for up to 12 months, and can be granted more than once. The court, on an application by the Chief Psychiatrist, can cancel extended leave at any time if it believes the safety of the person or members of the public are seriously endangered by the person being on leave.

Transfers

The Chief Psychiatrist may direct the transfer of a forensic patient to another designated mental health service if satisfied it is necessary for the forensic patient’s treatment (s 308(1) MHA). If a forensic patient – subject to a direction made under section 307 or 308 of the MHA – objects to the transfer, an application can be made to the Forensic Leave Panel by the patient, the patient’s guardian or the Secretary to the Department of Human Services within 20 business days after the direction is made, for a review of the direction (s 310(1), (2) MHA). A forensic patient can request a transfer and may invoke section 12 (the right to freedom of movement) of the Charter to support their application. The Forensic Leave Panel must, as soon as practicable after an application is made, hear and determine the application (s 310 (3) MHA). If the Forensic Leave Panel is not satisfied that the transfer of the forensic patient to another designated mental health service is necessary for that person’s treatment, it must grant the application. Alternatively, the Forensic Leave Panel may refuse the application if it determines that such transfer is necessary for the patient’s treatment (s 310 (5)(a), (b) MHA).

The Commonwealth Attorney-General has to approve the transfer of forensic patients detained under the Crimes Act 1914 (Cth) (s 308(2) MHA).

Interstate transfers of forensic patients

CMIUTA also provides for the transfer of Victorian forensic patients to a participating state if:

the Chief Psychiatrist certifies in writing that the transfer is beneficial to that person;

the relevant Victorian government minister is satisfied the transfer is permitted under a corresponding law in the participating state;

the relevant Victorian government minister is satisfied that the person subject to the order has given their informed consent to the transfer; or

if unable to give consent, that their guardian has given informed consent to the transfer (s 73D).

Section 73D of the CMIUTA provides for the transfer of forensic patients from participating states to Victoria if:

the transfer is permitted under a corresponding law in the participating state; and the relevant Victorian government minister has agreed to the transfer (s 73 E(1));

the Chief Psychiatrist has certified in writing that the transfer is for the person’s benefit, and there are suitable facilities available for the custody, care or treatment of that person, as the case requires;

that the relevant Victorian government minister is satisfied the transfer is necessary for the maintenance or re-establishment of family relationships, or relationships with the person’s critical support person(s);

the relevant Victorian government minister must be satisfied that the person has given their informed consent to the transfer, or if incapable of giving consent, that their guardian gives informed consent (s 73 E(2)); and

the relevant Victorian government minister determines that the person is detained in an appropriate place, as if the person were subject to a custodian supervision order; and

the person be absent on leave from an appropriate place, determined by the relevant Victorian government minister, on any conditions determined by that minister, as if the person was subject to a custodial supervision order, and had been granted extended leave (s 73 E(3)).

An “appropriate place” is defined (at s 3 CMIUTA) as “a designated mental health service, a residential treatment facility, or a residential institution”.

Apprehension and transfer of forensic patients who abscond interstate

As of June 2013, Queensland, New South Wales, the ACT and Victoria are the only states or territories to have reached ministerial agreement about the apprehension and transfer of forensic patients who have absconded interstate. The law in this area is complicated and may change. For more information, contact the Mental Health Legal Centre.

Emergency apprehension of persons subject to a non-custodial supervision order

Section 30 of the CMIUTA provides for the emergency apprehension of persons who are subject to a non-custodial supervision order (NCSO). Those deemed to be an “appropriate person”with the power to apprehend are:

the person having supervision of the order;

a police officer;

an ambulance officer; or

a person who is a member of a prescribed class, as defined in the Crimes (Mental Impairment and Unfitness to be Tried) Regulations 2009. These regulations expand the list of persons who are able to carry out an emergency apprehension order to:

registered medical practitioners, nurses and psychologists; and

social workers and occupational therapists,

who are employed by an approved public mental health service or a community mental health service.