The management of forensic patients in Victoria: the more things change, the more they remain the same

The introduction, in 1997, of the Crimes (Menta/Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA) marked dramatic legal and procedural changes to the common law system governing the post-acquittal detention of persons found not guilty by reason of insanity in Victoria which had endured for almost 200 years. The CMIA's express aim to restore the balance between community safety and the rights of persons found not guilty by reason of mental impairment (NGRMI) (as the verdict of insanity is now known), which, under the inflexible and opaque processes of the Governor's Pleasure system, had tipped too far in favour of the community, was lauded by the legislature and the courts. However, the absence of a comprehensive evaluation of the CMIA's operation has meant that the extent to which the CMIA has fulfilled its charter in the ensuing years has been unclear. Additionally and in contrast to the body of knowledge that surrounds insanity acquittees in overseas jurisdictions, comparatively little empirical information exists about NGRMI acquittees in Australia. The present study redresses this lack of empirical knowledge regarding the operation of the CMIA and the mental impairment defence by amassing an extensive body of data from which a salient snapshot of NGRMI acquittees can be drawn, as well as important information regarding detention and release patterns. The study also examines the extensive body of mental health jurisprudence that has developed as a result of the transfer by the CMIA of all major decision-making power regarding the ongoing management of NGRMI acquittees from the executive to the judiciary. Given that much, if not most, of the effectiveness of the CMIA is reliant upon the way the Act is interpreted by the courts, such an analysis is integral to gaining a comprehensive understanding of the CMIA's operation. Taken together, the foci of the study combine to produce a complete picture of the effectiveness of the CMIA and the degree to which it has been successful in achieving its stated aims, as well as highlighting areas that may potentially benefit from change. Participants in the study comprised all 146 individuals who had been found NGRMI in Victoria since the enactment of the CMIA in 1997. In addition, individuals who remained in detention under the Governor's Pleasure system at the time of the inception of the CMIA (and, therefore, became subject to the CMIA's transitional provisions) were included. The study utilised an archival approach, whereby data regarding participants' socio-demographic, psychiatric and criminological characteristics were drawn from institutional files. The course taken by participants through the "staggered" system of release established by the CMIA was also mapped over time, enabling calculation of the length of time taken by acquittees to move through the various stages of the system. Consistent with prior studies, the picture of the typical NGRMI acquittee that emerged was of a disenfranchised and seriously disordered individual with a strong history of contact with psychiatric services but whose contact with the criminal justice system resulting in the verdict of NGRMI was often an isolated event. The nature of the NGRMI offence was also consistent with previous findings; the majority of NGRMI acquittees were acquitted of committing a violent act, usually murder, against a family member or close acquaintance. However, the study found that a substantial minority of cases now involve minor or non-violent offences, suggesting that the new flexibility in dispositional options available to the courts under the CMIA has rendered the NGRMI defence a more attractive option than that which existed under the Governor's Pleasure system. Indeed, the study found that there has also been a sharp and steady increase in the number of NGRMI verdicts since the introduction of the CMIA which appears to be testament to the degree to which the detention, management and release system established by the CMIA is perceived, by interested parties, to have successfully restored the balance between community safety and the rights of persons found NGRMI. However, the findings related to detention and release patterns raised serious questions as to whether this perception has been borne out in practice. In particular, in contrast to the expectation that detention times would decrease as a result of the introduction of the CMIA, the study found that time served, for many NGRMI acquittees, has actually increased under the Act. This finding suggests that the old preoccupations and anxieties regarding persons adjudged not criminally responsible by reason of mental illness remain, with the only difference being that those preoccupations are now expressed in the language of the law rather than the platitude of politics. Indeed, an examination of the judicial interpretation of the CMIA exposed a clear tendency towards protectionism rather than treatment concerns. The study proposes that this tendency has been operationalised via the courts' adoption of decision-making principles which facilitate a conservative approach to the judicial task by ensuring that the seriousness of the NGRMI offence remains at the forefront of the risk assessment process, particularly at the dispositional stage. Consequently, the court has fallen into the trap of importing an element of punishment into the dispositional process, whereby disposition is largely determined on the basis of the seriousness of the NGRMI offence with little attention paid to the treatment and management needs of the acquittee. The study argues that this judicial vetting process along NGRMI offence lines is not only contrary to the CMIA's central criterion that "restrictions on a person's freedom and personal autonomy should be kept to a minimum consistent with the safety of the community" (s 39), but is also antithetical to the philosophical purpose of the NGMRI defence which is to negate criminal responsibility and the notion of punishment. However, more positively, the results indicated that, beyond the dispositional stage, the courts are not employing an informal tariff based on the seriousness of the NGRMI offence to determine length of detention. Instead, these later decision-making stages appear to be informed by a more comprehensive examination of dangerousness which takes account of a range of risk factors peculiar to each individual acquittee. Of these factors, the findings indicated that the most significant determinants of length of detention include factors relevant to successful community reintegration (such as level of education and employment prior to the NGRMI offence and/or relationship and parental status at the time of the NGRMI offence), the location of the NGRMI offence and the presence of a history of self-harm. The constellation of these particular factors as determinative of earlier release has resulted in the emergence of two sub-groups of NGRMI acquittees- namely female acquittees and intellectually disabled acquittees- as being likely to attract an atypical response judicial response at each decision-making stage. The picture of the CMIA's operation produced by the present study clearly illustrates that, despite the dramatic reforms introduced by the CMIA to the disposition and management of NGRMI acquittees in Victoria, the fact remains that "it is more difficult for forensic patients to leave the 'public safety regime' than to enter it" (Carroll, Lyall, & Forrester, 2004, p. 410). This finding. combined with the increased attractiveness of the NGRMI defence, has resulted in considerable pressure being placed on the forensic mental health system, both operationally and fiscally. Accordingly, the study concludes with an exploration of various options for remedying the immense pressure being placed on the system, with particular attention paid to ways in which the conservative bias of the judiciary can be shifted. Alternative models for the management of NGRMI acquittees established in other jurisdictions are also examined, raising the prospect that a centralised independent review board may represent the most effective means by which to achieve a fairer balance between considerations of public safety and the rights of NGRMI acquittees.