Mental illness and the criminal law

Supervision orders: compulsory treatment instead of prison

The criminal law recognises that a person’s mental illness should be taken into account when they are tried for a serious crime and when they are sentenced.  In most criminal cases where the accused person has a mental illness, this is considered when the court decides on a sentence. In these cases, Forensicare sometimes provides an independent report to the Court about the person’s mental illness so the Court can determine an appropriate sentence.

In a small number of cases every year the accused person raises the defence of “mental impairment” or their lawyer may argue they are “not fit to stand trial”.  The defence of mental impairment is raised where the accused person’s mental illness meant that they did not know what they were doing when they committed the crime, or they couldn’t understand that what they did was wrong.  The issue of whether a person is “fit to stand trial” is raised where their mental illness means they cannot understand 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 about how a court must deal with these cases and what treatment and supervision a person must have.

If the person is found not guilty by reason of mental impairment, or unfit to stand trial and to have committed the offences, the court will put them on a supervision order.  These cases only account for less than 1% of criminal cases coming before the Supreme Court or County Court each year. Forensicare is involved in these cases because it prepares reports to assist the court and supervises and treats people with a mental illness where a Court has made a supervision order under the CMIA.  A supervision order is an indefinite order. Sometimes people spend longer on a supervision order than they would in jail for the same crime. If a person is on a supervision order, receiving mental health treatment is compulsory.

The court decides who gets a supervision order

The decision to place a person on a supervision order is made after a complex legal process. This process ensures that all the facts are taken into consideration.

Independent psychiatric reports are made to assist the court

Where the accused person is raising the defence of mental impairment or fitness to stand trial their lawyer will organise for a psychiatric report.  A psychiatrist will then assess the person. The psychiatrist may also gather medical history and records, and other necessary information. They will write a report that is given to the court on whether they think the person meets the legal requirements for the defence of mental impairment or whether the person is not fit to stand trial.

The prosecution will also request an independent report from Forensicare. If both independent 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 the jury will decide after hearing evidence.

Forensicare advises the court about treatment

When it is decided that the person is not guilty by reason of mental impairment or unfit to stand trial, the court declares that they are liable to supervision under the CMIA.

Where the person has a mental illness, the court orders Forensicare to provide a report with recommendations for treatment. Forensicare’s report helps the court decide whether the person receives a custodial supervision order or a non-custodial supervision order.

Two types of supervision orders

A custodial supervision order means a person is held at the secure Thomas Embling Hospital, where they will receive compulsory hospital treatment for their mental health. The majority of people being treated at Thomas Embling Hospital are on this order.

A non-custodial supervision order means that the person lives and receives treatment in the community on conditions that are set by the court.  Generally, people receive a non-custodial order because they are a low risk to the community or themselves.

The conditions of a non-custodial supervision order include that the person:

• is supervised by Forensicare
• receive compulsory ongoing treatment from their local area mental health service.

The conditions of a non-custodial supervision order act as safeguards to help keep both the community and the person safe. If the mental health team treating the person believes that there are serious risks to the community, the person can be apprehended and taken to hospital for mental health treatment.  

A supervision order is indefinite

Prison sentences are for a set length of time, and when the prisoner has served their time, they can go free.

When someone is placed on a supervision order, the term of that order is indefinite. This means that the person can be subject to the order for an unlimited period, possibly the rest of their life. The person remains under supervision, either at Thomas Embling Hospital or in the community, until the court makes a decision to end the order (called “revoking” the order). The court only revokes an order when the court decides the person is not a threat to themselves or the community.

If a supervision order is indefinite, what is the purpose of the ‘nominal term’?

When a court makes a supervision order, it must set a nominal term. A nominal term does not determine the duration of the supervision order. Rather, it is the period that specifies when the court is to conduct a major review of the order and decide whether to decrease the level of supervision. The sole purpose of the nominal term is to ensure the court reviews the order during the indefinite period. The nominal term is determined in accordance with the CMIA. For example, the nominal term for murder is 25 years and for other serious offences it is determined by reference to the period equivalent to the maximum term of imprisonment available for the relevant offence.

Sometimes people wait in prison when the court makes a supervision order

The law says that when a person has been found not guilty by reason of mental impairment they should receive treatment in hospital, not in prison. Before a court sends a person on a Custodial Supervision Order to Thomas Embling Hospital, Forensicare must confirm if there is a bed available to provide treatment and services. Because of the number of beds at the Hospital and the growing number of people on a custodial supervision order, sometimes people have to wait in prison before they can be transferred to the Hospital.  While they are in prison, they can still receive voluntary treatment for their mental illness. 

Treatment on a supervision order is a slow and careful process

When a person is on a custodial supervision order at the 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 is granted in slowly increasing amounts

The first step is community leave.  To be granted community leave the person must apply to the Forensic Leave Panel. The Panel is independent of the Hospital and Forensicare. It gets reports from the person’s treating doctor and clinical team. The law says the Panel can only allow leave if it will contribute to the person’s rehabilitation, and that the leave will not put the safety of members of the public at risk.

Every time a person takes leave, the person will have a mental state examination – a one-on-one interview with a Forensicare staff member. Leave will not be permitted if the staff member has any concerns about the person’s mental state.

More detailed information can be found on our community leave page.

Leave is accompanied by staff members at first

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. Changes to the type of leave a person has must be approved by the Panel. Each case is different and the Panel looks at the individual person’s circumstances. There are people on a custodial supervision order at the hospital who have no leave at all, even after years.

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.

The Panel can grant leave for up to six months at a time. After six months is up, the person must apply again for more leave.

Moving from the hospital to living in the community involves expert supervision and safeguards

After a period of treatment and rehabilitation at Thomas Embling Hospital, and successful unescorted community leave, a person can apply to the court for extended leave. Extended leave granted by the court is the only way a person on a custodial supervision order can move from living in the hospital to living in the community. The court can only allow extended leave where it believes there is no serious risk to the community.

When the Court makes a decision about extended leave it holds a hearing where the judge gets written reports from Forensicare and hears evidence from the treating doctors at the Hospital and Forensicare’s community service.  The court can also receive statements from victims of the original crime and must notify certain victims before the hearing takes place. The court can decide to grant extended leave, or it can refuse the person’s application.

If extended leave is granted the person can live and receive treatment in the community for up to 12 months at a time. There are strict conditions on this leave. Usually, these conditions include that the person:

• attend regular appointments and supervision with Forensicare
• continue mental health treatment
• does not leave Victoria.

These conditions act as safeguards to help keep both the community and the person safe. During the 12 months, if the mental health team treating the person believe that there are serious risks to the community, the person can be apprehended and taken to hospital for mental health treatment.

Becoming free of a supervision order is a legal process

If extended leave is successful, the person can apply to the court to change their custodial supervision order to a non-custodial supervision order. This means they are still supervised by Forensicare but are treated by their local mental health service in the community. All the conditions of a non-custodial supervision order apply.

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 services, 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.

Rehabilitation is good for the person, and the community

Most prisoners have the opportunity to live in the community once they have finished their sentence. People under a custodial supervision order can also live in the community, once they are well again and if there is no risk to community safety. This means they have the chance to contribute to society and gain employment or more education. The long-term goal of all supervision orders is always successful rehabilitation and a safer community.

More information

You can find more information about the CMIA via  Victoria Legal Aid.

Information provided by the Office of Public Prosecutions for victims and family members can be found here.

An article about the Victorian Law Reform Commission’s Review of the CMIA in 2014 can be found here.