FITNESS TO STAND TRIAL AND THE DEFENCE OF MENTAL IMPAIRMENT

Defence of mental impairment
Fitness to stand trial
Procedures
Orders
Leave
Transfer
Emergency apprehension of persons subject to a non-custodial supervision order

It is presumed by the law that people are able to make a plea 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, and it is up to the party who says they cannot to prove this and rebut the presumption.

The law in relation to fitness to plead, Governor's Pleasure status and the insanity defence has been reformed with the passage of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ("CMIUTA"). This Act:

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.

Defence of mental impairment

If there is a connection between the incident for which the person is charged and a mental impairment then they may be eligible for a defence of mental impairment; this is a complete defence and so ought always be explored. The person should be advised of such a defence and be willing to provide to the court assessment reports on their mental state at the time of the offence.

A defence of mental impairment requires instructions from the client and evidence from the treating practitioner that at the time of engaging in the conduct constituting the offence the person was experiencing a mental illness that had the effect that:

they did not know the nature and quality of the conduct; or
they did not know that the conduct was wrong (if they could not reason with a moderate degree of sense and composure about whether the conduct as perceived by reasonable people was wrong); and
in the opinion of the practitioner, at the time of the offence the person was suffering from a mental illness and could not be responsible for their actions.

It is obviously imperative to any mental impairment defence that an assessment of the offender's mental state takes place as soon as possible to 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, jeopardising a successful defence.

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 juror or the jury;
understand the nature of the trial;
follow the course of the trial;
understand the substantial effect of any evidence that may be given in support of the prosecution; or
give instructions to their legal practitioner (s.6 CMIUTA).

Procedures

Where a person is found unfit to plead a court may adjourn the matter or hold a "special hearing" (ss.12–18) 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 Department of Public Prosecutions 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 (see: "Orders", below). This is a serious risk; there are important legal considerations that must be considered in raising this defence in the higher courts. It is possible, in such circumstances, that an offender with a disability could seek to use the Charter, either section 8 or section 24 (the right to a fair hearing).

Orders

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 a schedule and correlates to terms set out in the Sentencing Act 1991 (Vic) ("Sentencing Act"). A supervision order can be either custodial or non-custodial.

A person subject to such an order is classified under the Mental Health Act 1986 (Vic) ("MHA") as a forensic patient and under the Disability Act 2006 (Vic) ("Disability Act") as a forensic resident (see: "Intellectual disability", below). 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 intellectual disability services (see: Chapter 16*5 Intellectual Disability).

Leave

A person on a custodial supervision order is entitled to leave, to resume living in the community, on a graduated basis. The CMIUTA also sets out procedures for the release and the granting of leave to forensic patients. A major review of the person's order is to 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.

Up to 24-hours leave can be granted by the authorised psychiatrist supervising the person's treatment; more than this (but not more than three days per week) can be granted by the Forensic Leave Panel (see below).

In considering the revocation or variation of a 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 by treating practitioners and those responsible for granting leave (i.e. the Mental Health Review Board (MHRB), Forensic Leave Panel and the courts) and it is open to challenge by applying section 12 of the Charter.

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 can cancel extended leave at any time, if it believes the safety of the person or members of the public will be seriously endangered by the leave.

Special leave of absence specifying the circumstances for which the leave is required (up to seven days for medical treatment, and up to 24 hours in other cases) can be granted by the authorised psychiatrist. 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 under the CMIUTA. It 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 about on-ground or limited off-ground leave.

The Chief Psychiatrist can suspend this 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: Chapter 16*4 Psychiatric Disability.)

Transfer

The Chief Psychiatrist may order the transfer of a forensic patient to another approved mental health service if it is for the patient's benefit or is necessary for the patient's treatment. If the patient objects, an appeal can be made to the Forensic Leave Panel (s.53AB MHA), as described under "Leave", above. A forensic patient can request a transfer and may invoke section 12 of the Charter to support their application.

The Commonwealth Attorney-General has to approve the transfer of Commonwealth forensic patients.

As at July 2005 Queensland, New South Wales, the ACT and Victoria were the only states or territories to have reached Ministerial agreement to participate in interstate transfers of forensic patients under the CMIUTA. With respect to the interstate application of the MHA, only New South Wales has passed laws corresponding to those of Victoria.

Changes to the CMIUTA and the MHA allow for interstate application of laws relating to:

transfer of forensic and involuntary patient interstate (involuntary patients have a right of appeal to the MHRB against such a transfer (s.93G MHA)); and
warrants of arrest for interstate security patients present in Victoria.

The law in this area is quite complicated and has not been fully tested. Contact the Mental Health Legal Centre on 9629 4422 or 1800 555 887 (regional callers only) for more information.

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 with the power to apprehend are: