Etapa de Construcción

5.45 The Tribunal can recommend the release of a person found unfit to be tried if the Tribunal believes that the person is not dangerous. Recommendations are made to the “prescribed authority”, who is variously the Governor, Governor-General or the Minister for Health, depending on the status of the forensic patient.103 Statistics compiled by the Tribunal show that, in the majority of cases, the recommendations of the Tribunal are approved by the executive government.104 The Commission supports the following arguments against leaving the final decision for the release of forensic patients with the executive government:

The executive government does not hear the evidence on which the decision is based, rather it relies upon the Tribunal’s recommendations and reports. Nor does the decision-maker have to give reasons. This has led to concerns about the denial of natural justice to the forensic patient:

Although the patient may give evidence at the review, and is to be legally represented unless s/he chooses otherwise, neither the patient’s evidence nor the representative’s submissions are transcribed or presented to the ultimate decision maker. Oral evidence which modifies the effect of written reports is not available, except to the extent that it is included in brief written reasons for the Tribunal’s decision. No reasons have to be given by the Minister if he [or she] chooses not to accept the recommendations, and therefore the patient has no opportunity to address any fresh concerns or correct apprehensions of fact with which he or she disagrees.105

The additional step involved will inevitably lead to delays, as in some cases the recommendations have to be considered by the Minister, the Executive Council and the Governor. This delay can affect not only the person’s release but any change in the person’s custodial conditions which may be necessary due to changes in their mental condition.106 The Mental Health Advocacy Service has commented:

... The number of forensic patients is steadily increasing and ... the number of decisions that are required to be made by the Minister for Health and the Executive Council every six months is quite substantial.

As at [January 1995] this Service has been waiting for executive decisions regarding a large number of our clients since late November 1994. For the last two months, including the Christmas and New Year periods, we have received no advice from the Minister for Health of any decisions being made regarding our clients. For a number of our clients, this meant ongoing detention that is clinically inappropriate and in fact deleterious to rehabilitation.107

Political considerations may enter into the decision to release, for example a government may delay or refuse the release of certain people during an election campaign. This is an inappropriate basis for such decision-making. According to the Burdekin Report, discussing the situation in Australia generally:

Perhaps mindful of how poorly equipped they are for the task, [executive government] decision-makers tend to make very conservative assessments. The impression of witnesses who gave evidence on this topic was that regardless of what the advisory body recommends, the decision-makers generally decide against release. ... It seems improbable that such decisions are always based on a rational assessment of the prisoner’s potential threat to the rights of the wider community. The prime criterion is sometimes the potential for political damage to a government perceived by the public as being soft on criminals ...108

A refusal by the executive government to approve a recommendation for release may be in breach of the International Covenant on Civil and Political Rights, as such a decision is not reviewable by a court.109 Article 9.4 of the Covenant, to which Australia is a signatory, is as follows:

9.4 Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.110 5.46 In 1992, the Mental Health Act Implementation Monitoring Committee (the “Monitoring Committee”) expressed its preference for the removal of executive discretion from all decisions regarding forensic patients. Instead it recommended that decisions be made by the Mental Health Review Tribunal.111 The Burdekin Report and the Victorian Parliament Community Development Committee also recommended the removal of executive discretion.112 Submissions have also generally supported the removal of executive discretion.113 However, in 1988, the New South Wales Department of Health Steering Committee on Mental Health recommended that Ministerial discretion over Tribunal recommendations be retained, otherwise the executive would have “no power to prevent the

implementation of decisions in matters which may be viewed as sensitive”.114 Similarly, a 1996 New South Wales Health Department Discussion Paper did not support the removal of executive discretion and leaving the final decision with the Tribunal, commenting that while the Tribunal “deals with issues of a clinical nature, it is not constituted to look at the broader community issues, which is really the province of the executive arm of government”.115

5.47 Advantages of a specialist tribunal over a court. If the executive discretion is abolished, the question of who should be the final decision-maker in the areas of conditions of detention or release remains. The two options most often mentioned are a specialist tribunal, such as the Mental Health Review Tribunal, or a court. The crucial consideration is dangerousness. The Mental Health Review Tribunal has argued that it is better placed than a court to assess the person’s dangerousness as it is:

able to consider the forensic patient, and his or her situation, in a series of (for most forensic patients) progressively less restrictive environments, in order to determine whether a move to a situation allowing more freedom would be appropriate and safe. It can consider the conditions that would need to be imposed, and the circumstances and environment that would have to be established, in order to ensure the safety and appropriateness of the next less restrictive environment being developed for the patient. The Tribunal has the occasion to consider each forensic patient’s case at least once every six months, and sometimes more often. ... The Tribunal has available to it, not only the court file and expert opinion contained therein, but also, its own expertise, the expertise which it may especially commission, the expertise marshalled on the forensic patient’s behalf by the Mental Health Advocacy Service, and the expertise and day to day experience of the treating team which is managing the patient in the current

environment.116

5.48 By comparison, the Model Bill referred to at paras 5.19-5.20 above provided that such decisions be made by a court. The Commission has considered the arguments in favour of judicial decision- making in this area and retains its preference for leaving such decisions with an expert tribunal for the following reasons:

the varied expert membership of a tribunal allows for more expertise in the area of mental impairment and dangerousness;

the adversarial system of the courts is inappropriate for the consideration of issues such as continuing fitness and dangerousness;

the court has no continuing role after sentencing in the detention of “fit” defendants; and

a tribunal is generally quicker and less formal than the courts, which has particular advantages for this group of defendants.

5.49 The Commission recommends that the executive discretion be removed from all decisions regarding forensic patients (except as limited by Recommendation 20) so that all decisions as to their placement, security conditions and release are made by the Mental Health Review Tribunal. This recommendation will require consequential amendments to the MH Act and the MHCP Act to enable the Tribunal to make orders rather than recommendations, and the appeal mechanisms will also be affected (see Recommendation 22, below).

5.50 Delays relating to orders for release. The Monitoring Committee was also concerned about current delays, noting that it was not uncommon that a six monthly review is conducted before notification of approval or otherwise from the previous review is received. It recommended that any order/decision/recommendation (as appropriate) be made within six weeks of the hearing or receipt of recommendation.117 The Commission does not consider that it is appropriate to set a time limit on the handing down of the decision of such a decision-making body as the Tribunal. Delays are likely to be significantly reduced by the abolition of the executive discretion.