Mental illness and the criminal law

The criminal law may take into account a person’s mental illness when they have been accused of a crime and go to court or when they are being sentenced by the court. 

In a small number of cases, the accused person raises the defence of “mental impairment” or it may be raised that they are “not fit to stand trial”.  The defence of mental impairment is established where the accused person’s mental illness meant that they did not know the nature and significance of the conduct they engaged in and its consequences, or they did not know that the conduct was wrong.  A person is “not fit to stand trial” where their mental illness means they are unable to understand or engage in the court process at the time of the trial.  The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (CMIA) sets out the law in Victoria about how a court must deal with these cases and what treatment and supervision a person requires. 

Independent psychiatric reports are made to assist the court 

Where the accused person raises the defence of mental impairment or fitness to stand trial their lawyer will obtain a psychiatric report.  A psychiatrist will assess the person and gather medical history and records, and other necessary information. They will write a report for the court on whether they think the accused person meets the legal requirements for the defence of mental impairment or fitness to stand trial. 

The prosecution will also request an independent report from Forensicare. If both experts agree about the defence of mental impairment or fitness to stand trial, then the judge will look at the evidence and make a decision. If the experts disagree, then the person goes to trial, and a jury will decide after hearing evidence. 

Decision by the court 

If the accused person is found not guilty by reason of mental impairment or is found to be unfit to stand trial and to have committed the offence/s, the court may place them on a supervision order.  These cases account for a very low percentage of criminal cases coming before the Supreme Court or County Court each year.  

The decision to place a person on a supervision order is made after a complex legal and court process. This process ensures that all relevant facts are taken into consideration before a supervision is (or is not) made.  

There are two types of supervision order: 

• A Custodial Supervision Order where a person receives compulsory treatment for their mental health at Forensicare’s Thomas Embling Hospital. 

• A Non-Custodial Supervision Order where a person lives and receive treatments in the community on conditions that are set by the court.   

A supervision order is for an indefinite period of time. Sometimes people spend longer on a supervision order than they would spend in prison for the same offence. 

Forensicare is responsible for the supervision and treatment of people with a mental illness who the court has placed on a supervision order. If a supervision order is being considered for a person whose mental illness was the reason they were found not guilty because of mental impairment or unfit to stand trial, the court will order Forensicare to provide a report about what kind of mental health treatment the person needs. Forensicare’s report will help the court decide whether to place the person on a supervision order, and the level of supervision that they will require whilst on the order. 

If a person is placed on a supervision order under Forensicare’s supervision, Forensicare will be required to provide reports to the court on an annual basis that sets out the person’s treatment, as well as any changes to the person’s condition or behavioural problems and the plan for managing these.   

Treatment on a custodial supervision order 

When a person is on a Custodial Supervision Order at the Thomas Embling Hospital, treatment and working with them on rehabilitation and recovery is a long and slow process that involves lots of checks and balances. As well as treatment with medication, we work with individuals and their families or carers to identify goals and the steps they need to take to be safe and recover. 

Treatment includes group and individual counselling and helping people to understand what led them to criminal behaviour and the impact of their criminal behaviour.  It also includes physical and spiritual health needs, understanding the side effects of medication, education, and vocational skills.  We work with people to give them the skills to look after themselves and live independently. Periods of leave are an important part of this process. 

Leave to access the community 

The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 sets out that applications can be made to permit a a person on a Custodial Supervision Order at the Thomas Embling Hospital to leave the secure facility to access the community. To be granted community leave the person must apply to the Forensic Leave Panel. The Panel is independent of the Hospital and Forensicare.  

Leave is granted in slowly increasing amounts 

If the Panel grants a person leave, at first, the person is accompanied by staff members and can only go out on leave for short periods of time. As they continue with their rehabilitation over months or years, they may progress to accompanied leave for longer periods of time, and then unescorted leave.  

Leave is often used to reconnect with family, develop living skills, for education and to shop for food to cook meals. 

After some time, the Panel may grant the person overnight leave for up to three nights a week. This helps prepare the person for moving back into the community.  

Pre leave assessment 

Every time a person takes leave from Thomas Embling Hospital they have a mental state examination – a one-on-one interview- with a Forensicare staff member. Leave is not permitted if the staff member has any concerns about the person’s mental state. 

Moving from the Hospital to living in the community 

After a period of treatment and rehabilitation at Thomas Embling Hospital, and successful unescorted community leave, an application may be made to the court for extended leave. This application will usually be made by the person’s legal representatives 

Extended leave granted by the court is how a person on a Custodial Supervision Order is able to move from living in Thomas Embling Hospital to living in the community. The court can only allow extended leave where it believes there is no serious risk to the community after hearing evidence from the person’s doctors at the Hospital and also from Forensicare’s community service program. 

The court can also receive statements from victims of the original offending conductand must notify certain victims before the hearing takes place. The court can decide to grant or refuse extended leave. 

If extended leave is granted, the person can live and receive treatment in the community under the supervision of Forensicare for up to 12 months at a time. 

Becoming released from a supervision order 

Becoming release from a supervision order is a legal process. If extended leave goes well, an application can be made to the court to change the person’s Custodial Supervision Order to a Non-Custodial Supervision Order. This application will usually be made by the person’s legal representatives. This means the person will still be supervised by Forensicare but are treated by their local mental health and wellbeing service in the community.  

Once the person is on a Non-Custodial Supervision Order, they may apply to the court to revoke this order. If successful, this means they are no longer under the authority of the court and can continue as a client of their local mental health and wellbeing service, like any other person in the community. 

Each of these legal steps requires a court hearing, where victims are notified, and reports are provided to the judge. 

Frequently asked questions