The Law Handbook 2024

Chapter 8.3: Disability and criminal justice 811 Variation and revocation of supervision orders Under the CMIUT Act, a person who is subject to a supervision order can apply to the court to have the order varied or revoked (i.e. cancelled). In considering an application, 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’. The court must apply the key principle that any restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the community’s safety (s 39 CMIUT Act). The court must also consider a list of specific matters in making a decision to make, vary or revoke a supervision order (s 40 CMIUT Act). After a court makes a supervision order, it may direct that the matter return for a court-ordered review (s 27(2) CMIUT Act). When a court conducts a review, it may confirm the order, vary the conditions, change the type of order (custodial or non-custodial) or revoke the order (ss 32, 33 CMIUT Act). At least three months before the nominal term expires, a court must undertake a major review of a supervision order (s 35 CMIUT Act). The purpose of a major review is to see whether the person may be released from the order. While the court is not required to revoke the order at the end of the nominal term, a major review is a serious process in which the court looks at the person’s progress and whether they should be released unconditionally. If the supervision order is confirmed, it may continue indefinitely (s 27 CMIUT Act) but another major review must occur within five years (s 35(1) CMIUT Act). Leave A person on a custodial supervision order is entitled to apply for leave. The CMIUT Act (Part 7) 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 Applications for special leave must outline the special circumstances for which the leave is required (i.e. 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 Victorian Government Department of Health (‘ Department of Health (Vic)’ ). In making a decision about special leave, the psychiatrist must consider whether the safety of members of the public will be seriously endangered. If refused, a person can appeal to the Forensic Leave Panel (established under Part 7 Division 2 of the CMIUT Act), which 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. 2 On-ground leave On-ground leave allows a forensic patient or resident to be absent from the place of custody while remaining within the surrounds. ‘The surrounds’ is ‘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) CMIUT Act). If refused, a person can appeal to the Forensic Leave Panel. 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 6am and 9pm; the person can only be absent for a maximum of three days in a seven- day period (s 53 CMIUT Act). Limited off-ground 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 Chapter 8.4: Mental illness.) 4 Extended leave A person on a custodial supervision order may apply to the court that made the order for extended leave. A grant of extended leave allows the forensic patient to live in the community, with conditions. It 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.