From the moment a person with a mental illness or intellectual disability is first interviewed by police, specific procedures, laws and human rights obligations apply. The defence of mental impairment should always be considered, but important legal factors must be considered. Assistance for going to court should be planned ahead, and consideration of criminal justice diversion programs, and the specialist Assessment and Referral Court that can provide psychological assessment and referral to welfare, health, mental health, disability, housing services, and/or to drug and alcohol treatment. More sentencing options are available and supervision and leave orders for forensic patients.

Contributor

Liam McAuliffe

Barrister

Custodial and non-custodial supervision orders

Last updated

1 June 2021

Making a supervision order

A person found not guilty by reason of mental impairment at a criminal trial in the County Court or Supreme Court must then be declared eligible to be supervised or be released unconditionally (s 23 CMIUT Act). If a court declares a person is eligible for supervision, it must either make a custodial supervision order or a non-custodial supervision order (s 26 CMIUT Act). 

These types of orders last indefinitely unless revoked (s 27 CMIUT Act). However, the court must fix a nominal term for both types of supervision orders. The nominal term is set out in section 28 of the CMIUT Act – this section must be read in conjunction with the Crimes Act (Vic). The effect of a nominal term is described below.

A person who is subject to a custodial supervision order and who is detained in custody in a designated mental health service is classified as a forensic patient under the Mental Health Act 2014 (Vic) (‘MHA 2014’). Or  – if they are detained in a residential treatment facility – they are classified as a forensic resident under the Disability Act 2006 (Vic) (‘Disability Act’) (see ‘Intellectual disability’, below).

People who are subject to supervision orders under the Crimes Act 1914 (Cth) (‘Crimes Act (Cth)’) are referred to as ‘federal forensic patients’. Provisions relating to supervision orders for people with an intellectual disability have been added to the Disability Act to ensure that people receive appropriate assistance from intellectual disability services (see Chapter 8.5: Intellectual disability and the law).

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 the 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, the 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 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 6 am and 9 pm; 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.

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.

Transfers

A forensic patient may be transferred to another designated mental health service by the Chief Psychiatrist if it is necessary for the forensic patient’s treatment (s 308(1) MHA 2014). If a patient (subject to a direction made under section 307 or 308 of the MHA 2014) objects to the transfer, an application for review can be made to the Forensic Leave Panel by the patient, the patient’s guardian or the Secretary of the Department of Health (Vic) within 20 business days after the direction is made (s 310(1), (2) MHA 2014). The Forensic Leave Panel must, as soon as practicable after an application for a review is received, hear and determine the application (s 310(3) MHA 2014).

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 (s 310(5)(a) MHA 2014). Alternatively, the Forensic Leave Panel may refuse the application if it determines that such a transfer is necessary for the patient’s treatment (s 310(5)(b) MHA 2014).

A forensic patient can request a transfer and may invoke section 12 of the Charter (the right to freedom of movement) to support their application. The transfer of forensic patients detained under the Crimes Act (Cth) needs approval by the Commonwealth Attorney-General (s 308(2) MHA 2014).

Interstate transfer of forensic patients

Under the CMIUT Act, a Victorian forensic patient can be transferred 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 the person subject to the order is unable to give consent, the relevant Victorian Government minister is satisfied that the person’s guardian has given informed consent to the transfer (s 73D).

Under the CMIUT Act (s 73D), a forensic patient can be transferred from a participating state to Victoria if:

  • the transfer is permitted under a corresponding law in the participating state;
  • the relevant Victorian Government minister has agreed to the transfer (s 73E(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;
  • 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 is 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 73E(2));
  • 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 is 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 73E(3)).

An ‘appropriate place’ is defined in section 3 of the CMIUT Act as ‘a designated mental health service, a residential treatment facility, or a residential institution’.

Apprehension and transfer of forensic patients who abscond interstate

Queensland, New South Wales, the Australian Capital Territory and Victoria are the only states and 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 (see ‘Contacts’ at the end of this chapter).

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

Section 30 of the CMIUT Act provides for the emergency apprehension of people who are subject to a non-custodial supervision order.

People who have the power to apprehend those on an emergency apprehension order are:

  • the person having supervision of the person under the order;
  • a police officer;
  • an ambulance officer;
  • a person who is a member of a prescribed class, as defined in the Crimes (Mental Impairment and Unfitness to be Tried) Regulations 2009 (Vic); these regulations expand the list of people who can carry out an emergency apprehension order to:
    • registered medical practitioners, nurses and psychologists,
    • social workers and occupational therapists employed by an approved public mental health service or a community mental health service.

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