ࡱ> JMGHIg _bjbjVV r:r<r< M ^\D8jTj(&&&$6T&%%&&B$---& -&--J}r@@z@ (}uB:0juV*zzz@&&-&&&&&,&&&j&&&&&&&&&&&&& : Cristina Ricci 鱨վ GPO Box 5218 Sydney NSW 2001 21 August 2013 Dear Cristina Thank you for inviting Queensland Advocacy Incorporated (QAI) to respond to the AHRC Issue Paper entitled Access to justice in the criminal justice system for people with disability. Yours sincerely, Ken Wade, Director 鱨վ Queensland Advocacy Incorporated QAI is an independent, community-based, systems and legal advocacy organisation for vulnerable people with disability in Queensland. Our mission is to promote and protect the fundamental rights of these people, and we have pursued this mission vigorously for 25 years. In 2007, we produced Disabled Justice a report highlighting the barriers to justice for persons with disability in Queensland. The report also made a number of recommendations focusing on need for structural reforms which should be implemented to better promote access to justice for persons with disability. While many of these recommendations were subsequently adopted in Queensland, we are aware of barriers which continue to affect the experience of persons with disability in the criminal justice system. Persons with disability continue to be over-represented as both victims of crime, as suspects, defenders and offenders in the criminal justice system. For this reason we commend the AHRC for promoting dialogue and action to create equality for people with disability in the Australian legal landscape. Before addressing the discussion points offered in the paper, we would like to preface our submission with the following observations that we hope are considered in addition to the discussion points. Acknowledgements QAI acknowledges and thanks the following people for sharing their views with us. Dr Tamara Walsh, University of Queensland Jennifer Cullen, Director, Synapse Jim Gibney, Legal Aid Queensland Jim Simpson, NSW Council for Intellectual Disability Magistrate Christine Roney Magistrate Colin Strofield Professor Susan Hayes Roslyn Williams- Caxton Legal Centre Terry Fisher- Fisher & Co Solicitors Recommendations Cooperation between agencies Cooperation and a united approach is key to justice reform. The corporatist approach has had demonstrable benefits in NSW and reformers are more likely to get buy-in the earlier they involve the major players. Improved Protocols for the Identification of Persons with Intellectual Disabilities and Reduced Capacity We recommend adoption of a test for intellectual disability administered by police after arrest and-or by duty lawyers, or by court liaison officers. In Queensland we have no general protocol for the identification of persons with reduced capacity at any stage in the criminal justice process. Benchmarks That protocol may need to be enforced by setting performance benchmarks re: screening/identifying /supporting a person with intellectual disability. For example, Divisional Commanders set identification benchmarks for which they would be strictly accountable to the Commissioner. Commanders will put pressure on police station sergeants. Improved training to police, the judiciary, court staff, duty lawyers, prosecutors and private solicitors involved in the criminal justice Regular training and adequate resourcing, developed and provided in consultation with people with cognitive disabilities and their advocates, should be provided to the police, the judiciary, court staff, duty lawyers, prosecutors and private solicitors involved in the criminal justice and civil law systems in order to improve their identification and understanding of the needs of clients with any cognitive disability, and to enable those clients to be assisted to engage effectively with all aspects of the legal system. Training and associated resourcing should include information about different forms of cognitive disabilities and provision for the related needs of persons with such disabilities. Increased availability and accessibility of legal services Commonwealth and State Governments should increase funding for specialist legal community centres and Legal Aid lawyers with expertise in disability, in order to enable people with disability to have free/affordable access to legal representation, irrespective of the complexity of their matter. Adequate funding should also be provided to enable people with disability, their families and carers to have access to specialist advocacy services so that they can more easily negotiate the justice system. Improved data collection Justice databases, including police, court and corrective services systems, do not reliably record data about people with reduced capacity. This makes it difficult to guage the extent of the problem of overrepresentation. Queensland Advocacy Incorporated further recommends: The compulsory presence of a third person during the police interview of persons with impaired capacity; Expanding the jurisdiction of the Mental Health Court to include summary offences OR Establishing a cluster of problem solving courts like the Special Circumstances Court trialled here in Queensland; The introduction of a provision in Queensland equivalent to s32 Mental Health (Forensic Procedure) Act NSW which allows Magistrates to adjourn, grant bail or dismiss a charge or defendant on conditions, but doesnt require the accused to make a plea (as the former special circumstances court did); The introduction of something equivalent to the Indigenous Sentencing List which replaced the Murri Courts; Magistrate Diversion Programs aiming to identify defendants with mental health and intellectual disabilities to divert them from Criminal Justice System and facilitate effective early intervention, for example establishment of day programmes to support court orders and Community based programmes emphasizing prevention and rehabilitation; A National approach that accurately identifies defendants with an ID Forensic Process Recommendations- Reform of Chapter 7 Part 2 of the Mental Health Act 2000 (Qld) Allow Chapter 7 Part 2 to be by election. To cater for people who do not have capacity to make such a decision, there could be an opt out clause, a requirement that such a person have legal representation and/or power of the Courts to refer a matter to Chapter 7 Part 2. Allow Chapter 7 Part 2 to be available to all people who wish to rely upon a defence of unsoundness of mind or unfitness for trial. Given the lack of severity of the offence, allow section 238 reports to be prepared by someone with sufficient experience and training, but not necessarily a consultant psychiatrist. Better collection of data and data transparency in relation to the preparation of section 238 reports, leading to increased public scrutiny, improved analysis of reasons for delay and improved strategies to address delay. Amendments which will encourage a change in the culture of acceptance that section 238 reports will not be provided within the stipulated timeframe of 21 days. For example, penalties or incentives. Establish a diversion and support program which can help a person who is not guilty by reason of impaired capacity to access treatment and avoid entrenchment in the criminal justice system. Amending the Justices Act 1886 (Qld) or some other Act to provide for the determination of summary offences where a person is unfit for trial or was of unsound mind. Dispensing with section 241 which allows the Director of Mental Health to defer reference for up to 4 months if the DMH believes that the person is likely to be fit for trial after that period. .. Introduction - Why is it necessary to ensure access to justice for persons with disability? To ensure Australia meets its international obligations under the United Nations Convention on the Rights of Persons with Disabilities. In particular Article 13 of the UNCRPD states that people with disability should enjoy equal and effective access to justice. To uphold Commonwealth legislative requirements included in the Disability Discrimination Act. To ensure the most vulnerable people in our society do not become entrenched in the criminal justice system. This is costly not only to the individual but also to society as the cost of keeping a person in prison is substantially higher than providing support to an offender with a disability. To ensure that persons with disability are not denied other rights because of a penalties access to justice. For example, a person with a disability who experiences discrimination in the workplace may be denied protection of the right to work and the right to access justice if the justice system lacks the mechanisms needed to enable a person with physical or communication difficulties to seek a remedy. Who is affected? The AHRC states that it is concerned that many people with disability who need communication supports or who have complex and multiple support needs are not treated equally within the criminal justice system. It is QAIs experience, backed by research in many Australian jurisdictions, that the single most pressing issue is the overrepresentation of persons with reduced capacity who have entered the justice system as offenders- overwhelmingly for either multiple minor public nuisance-type offences, or for sex offences. The heart of the Access to Justice issue is that in nearly every Australian jurisdiction the principal overrepresentation groups are people from Aboriginal and Torres Strait Islander background, and people with reduced capacity, with a huge overlap in these categories. We lock people up for being Black, and we lock people up for having impaired capacity- intellectual and cognitive disabilities and acquired brain injuries including the under-recognized Foetal Alcohol Syndrome, and mental health issues. In this submission we focus on the experience of people with impaired capacity charged with offences as they proceed though the Queensland criminal justice system. Significant Barriers to Justice The Disability Services Act 2006 (DSA) requires all Queensland state government departments to develop and implement a Disability Service Plan every three years. The DSA requires departments, including the Queensland Police Service (QPS) to develop a Disability Service Plan, and the QPS is committed to incorporating and embedding the- objectives of the Disability Services Act 2006 and the Carers (Recognition) Act 2008 principles and tenets of the Convention on the Rights of Persons With Disabilities priorities, strategies and actions included in the Absolutely Everybody, whole-of government action plan, and the Queensland Carers Action Plan. While this is a positive policy step there is little evidence that these plans have changed the way things are done on the street and in the watch-houses of this state. There is little point in planning to safeguard the rights of persons with disabilities if, for example, the police are unable to identify persons with disabilities in the first place. Police Identification of Mental Health Issues, Intellectual Disability and other Capacity-related Conditions Police are often called to assist when a person is disturbed in their behaviour. In emergency situations police may have recourse to an Emergency Examination Order. Where they believe a person has a mental illness as defined in the Mental Health Act 2000 and they believe that- because of the person's illness there is an imminent risk of significant physical harm being sustained by the person or someone else; and proceeding under a Justice Examination Order (JEO) would cause dangerous delay and significantly increase the risk of harm to the person or someone else, police are authorized to seek the temporary detention and examination of a person who is experiencing urgent mental health problems. Following examination, it may be decided that the person should undergo Involuntary Assessment, which in turn can lead to the making of an Involuntary Treatment Order (ITO). In Queensland there is no systematic identification of persons with intellectual disability or other capacity-related impairments. The police may administer a test when officers believe an accused may have an intellectual disability, but the administration of that test appears to be selective. Discussions about trialling the HASI Test developed by Susan Hayes  took place between the Queensland Police Service and Disability Services Queensland in 2011, but plans for that trial appear to have gone off the boil since the change in state government in 2012. The same test was trialled for use when processing Legal Aid applications by Legal Aid Queensland in 2007-2008, but was not adopted. There is obviously a need for early identification of persons with impaired capacity, and a protocol for how they will be dealt with. Experiences like the following are not uncommon. Case Study- Intellectual Disability: The mother of a young man with an intellectual disability was concerned about the possibility of her son getting into trouble with the police, so she went to local police stations to inform them of his presence in the area, and to explain his disability. She asked police to contact her if her son was ever picked up. Shortly thereafter police from one of the stations detained the young man. They had been called by a bus driver in response to a complaint by a female passenger that the young man had made unwanted sexual advances. The police detained the young man but did not contact the mother. He was dropped off in the street, without charge, seven hours later. He did not know where he was or how to get home- he had been trained to catch one bus only. His mother reports that since that day he has been terrified by the sight of police. Research by Lorana Bartels and by the NSW Intellectual Disability Rights Service has identified the need to provide support to people with capacity issues in police interviews- so as to assist the person to understand what is happening and being said by the police and to understand and exercise their rights. NSW has a voluntary support service that connects volunteers with defendants with intellectual disabilities but there is no similar program here in Queensland other than Queensland Advocacy Incorporateds own Justice Support Program, funded for a single position state-wide. In 20072008 Queensland Legal Aid trialled a screening tool to identify clients with an intellectual disability or cognitive impairment. They administered the Hayes Ability Screening Index (HASI) tool for three months to assess its applicability across our organisation and, hopefully, the wider justice system. The plan was for the HASI tool to allow staff to: communicate appropriately obtain support and assistance from an in-house social worker refer the client for a full-scale assessment if their disability will impact on their legal matter refer the client to our Brief Services Unit so we can spend more time helping them clarify the client's problem and provide advice and assistance refer the client to other agencies for assistance or support, and to provide more accurate figures on the proportion of Legal Aid clients with intellectual disabilities. The tool was not adopted after the Trial. We spoke to Jim Simpson from the NSW Council for Intellectual Disability about how a disability screening tool could be best applied. He suggested that the only way to get police to consistently identify people with intellectual disabilities is to require Divisional Commanders to set benchmarks against which police performance will be measured. Police would be required, for example, to show that they identified people with intellectual disabilities in proportion to their presence in the offending population. Other stages in the process for which clients with intellectual disabilities may need assistance include: support engaging legal counsel support for court proceedings, bail support to arrange reports commenting on the relationship, if any, between their offence/s and their disability support liaising with service delivery organisations to ensure that the least restrictive, preferable non-custodial sentencing options are available. In Court- the 2 tiered approach to offenders who lack capacity in Queensland Every Australian jurisdiction is different in its approach to offenders with capacity issues. In Queensland we have a two-tiered system that deals with offenders in qualitatively different ways. That difference depends on the seriousness of the offence. Charged with a simple or summary offence, a person with reduced capacity not currently subject to an Intensive Treatment Order (ITO) or Forensic Order (FO) will appear in the Magistrates Court like any other offender. There is no special procedure such as the s32 process in NSW that triggers an expert capacity assessment, or the Victorian Disability Services report option. There is no special plea available even if the person has minimal or no understanding of the nature of their (alleged) offence or of the legal process itself. This is the Avery situation- the widely publicised experience of Melissa Avery, a woman with intellectual disability who repeatedly appeared in a Queensland Magistrates Court for minor shop stealing offences. Customary criminal court proceedings are arguably not appropriate for persons like Melissa given Melissas lack of capacity to understand the nature of her offending or of court proceedings. Dan Toombs, her counsel and at the time a solicitor with a Toowoomba Community Legal Service has written extensively about Melissas experiences . Ideally the defence would appear equipped with the Queensland Police Form (QP9), the persons criminal history, the Police Court Brief, letters from treating doctors and private psychiatric reports. The Magistrate would then be able to frame a sentence that takes into account the whole circumstances of the persons offending behaviour, assuming they had offended. Where the offence is trivial or there are extenuating circumstance the magistrate would have the option of discharging a convicted person pursuant to s 19 Penalties and Sentences Act 1992 (Qld) but anecdotal evidence suggests that this option is rarely used by Magistrates. In fact people with intellectual disabilities and other capacity-reducing conditions often appear without the benefit of a well-prepared defence, and the Magistrate has very few sentencing options open to them, especially in rural and remote areas. Charged with a more serious indictable offences, that person may rely on a defence of unsoundness of mind or unfitness for trial, and is likely to be referred to the Director of Mental Health, who will direct a psychiatrist to carry out a capacity assessment. That assessment, pursuant to s 238 of the Mental Health Act 2000 (Qld), is a medically focussed determination of the persons capacity at the time of the (alleged) offence/s and their capacity to stand trial. If a person charged with an offence is already under a Forensic Order or a (non-forensic) Intensive Treatment Order a s238 Mental Health Act 2000 (Qld) capacity assessment is automatically triggered. Section 238 Delay- One of the most egregious denials of natural justice for people so situated is that they may have to wait a long time - in excess of 18 months is documented - for the psychiatrist to do the assessment. This time may be spent in a remand centre, where there are no rehabilitation programs or treatment (if a mental health issue) or worse, they may successfully plead not guilty in the courts and have no recourse for time served. The 2006 Butler Report  addressed and made recommendations about the s 238 process, and those recommendations were implemented by the relevant departments and authorities- the Queensland Police Service, the DPP, Queensland Health, Attorney-Generals Department and the Director of Mental Health. But despite those changes the delays remain, perhaps because so many different siloed departments are involved. The legislated timeframe for such a report is 21 days. In 2011-12, for example, this timeframe was only adhered to in 12% of matters. 鱨վ half (48%) were provided between 43 and 180 days and an alarming 22% took more than 180 days.  Figure One: Chapter 7 Part 2 process with legislated and actual timeframes Section 238 Delay Case Study One X was serving time in prison for convictions in armed robbery. While in prison he was placed on an ITO. He was then released on parole. In or around 2009, X was charged with numerous offences (outstanding charges) while on parole. He was brought back to prison for breach of parole. From November 2011 until August 2012 X was admitted to a mental health service as a classified patient because of a serious deterioration in his mental health. X was returned to prison on 10 August 2012 after displaying challenging, aggressive and threatening behaviour towards another patient. On 9.07.2013, X was eligible for full time release, but he continues to be detained in prison on remand for his outstanding charges. X was a Chapter 7 Part 2 patient for his outstanding criminal charges committed in 2009. The section 238 report was completed after advocacy by QAI in May 2013. We understand that the matter has gone to the DPP and at least some of the matters will be continued according to law. We continue to investigate the status of the remaining charges. At present, no application has been made by his criminal lawyers for bail. Section 238 delay Case Study Two Townsville has longest delays and perhaps not coincidentally Townsville also has a higher than average proportion of Aboriginal people. According to research by Baldry et al there is a synergistic effect that pushes forensic overrepresentation of ATSI people with mental health or cognitive disabilities into the stratosphere. In Townsville an ATSI woman on an ITO accumulated a number of charges; went to court on those charges, and was refused bail because of the risk of re-offending. She waited 6 months on remand for a s238 report and she was released on bail. Her matters eventually went to court and she was convicted and released with time served. By then, however, she had accumulated more charges, and again she was emanded into custody pending another s238 report so that matters could proceed. The cycle continues. 鱨վ 50% of all reports are returned to the psychiatrist by the administrator. There are no Aboriginal liaison people available to explain maters. Clients have no access to programs while on remand, and they are usually placed in high security. Excessive remand is also an issue when theres no ITO. The quality of the (s238) reports is very poor. It is not uncommon for ATSI to say, for example, that they often hear the voices of their ancestors. Yet this is sometimes construed by psychiatrists as hearing voices. A very high threshold is required for a person to be found unfit to plea. If alcohol is present in the system then psychiatrists have been known to use that as the reason (as opposed to another cause of impairment unrelated to alcohol). Sometimes ITOs are revoked and the report is no longer required, but in the meantime the person has been left waiting for their court date. There are many reasons for delays. The workload of psychiatrists at prison is excessive. Some psychiatrists seem not to like/want to write the reports, and the fees are too low to be worth the while of psychiatrists in private practice. Most importantly there is no mechanism to enforce the making of the report in the first place. It is arguably unethical for a treating psychiatrist to make the report, because that is a conflict of interest. However, available psychiatrists are few and insisting on a different psychiatrist would only increase delays. A solution suggested by a legal advocate in Cairns is for the legislation to be amended to allow a person to waive the need for the report in the first place. That person would enter a plea (of guilty). Only about 1 in 30 are found unfit to plea anyway because the threshold is very high. Other Problems with the Forensic System If the s238 assessment determines that the person lacks capacity they are referred into the forensic system. At the Mental Health Court (MHC) there is a presumption that the facts of the matter are substantially correct. If the person wants to enter a plea of not guilty they must go through the usual criminal justice process in a court of law. In the Mental Health Court there is no scrutiny of the facts, and the focus instead is on a therapeutic jurisprudence. The person may be placed on a Forensic Order (FO) and detained 1. to receive treatment 2. to minimize risk to themselves and the community or they may be placed on an order for Limited Community Treatment (LCT). For the first 12 months a persons fitness for trial will be reviewed evey 3 months. Forensic Orders are reviewed hereafter every 6 months in the Mental Health Review Tribunal. People on Forensic Orders are being detained in forensic units and health care facilities when community treatment is often a better option for both the person and for the community. While detained a persons living skills and their ability to function as law abiding citizens in the community diminishes. Case study One- Inappropriate detention A forensic client was originally assessed as having an intellectual disability according to the DSM4/ICD 10 and Disability Services Queensland (SDQ). He qualified for a support package and community release. Recently he was reassessed at IQ 78 and was therefore no longer eligible. DSQ withdrew the support funding that enabled him to live in the community. His risk (based on past offending behaviour) therefore required that he be confined in a forensic unit. Case Study Two- Situational offending- permanent branding X has intellectual disability. At a church-related gathering he and an 8 year old girl were invited to a secluded place by an older boy (without an intellectual disability). The older boy directed him to expose himself, and the girl to touch the younger boys penis. The girls parents complained to police. This was the boys first and only offence. The risk to the community from this young man with an intellectual disability is low, but he is now a registered sex offender and detained in an institution. What he needs is training in appropriate sexual behaviour. This is true for many offenders with intellectual disabilities, who often come from dysfunctional backgrounds and who have learned inappropriate behaviour from parents and peers. Detention in an institutional setting will cost around $1500 per day and often rehabilitation is not provided. Community-based support may be more costly, depending on the arrangement, in the short term - around $600 k per year for full support - but in the community setting he can build capacity, and by building capacity will get to a point where he is no risk to the community and no longer needs high level support. Sentencing There are insufficient sentencing alternatives and diversionary options for people that suffer from impaired capacity, and this can result in people with disability being subject to unjust sentences and being indefinitely incarcerated. This is costly both to the individual and the taxpayer. Here in Brisbane Magistrate Christine Roney ran a trial of a Special Circumstances Court from 2006-2012, an evaluation of which is available here:  HYPERLINK "http://www.aija.org.au/online/Pub%20no90.pdf" http://www.aija.org.au/online/Pub%20no90.pdf.  The Special Circumstances Court was a local version of Victorias earlier (2002 onwards) Special Circumstances Court established in 2002, and of other problem-solving courts (e.g. drug courts, neighbourhood justice courts, homelessness courts) in the US. The Special Circumstances Court was a special court list for defendants experiencing or at risk of homelessness or who had impaired decision-making capacity. The list was administered within the Brisbane Magistrates Court and was aimed at rehabilitating adult defendants who had committed low level criminal offences. Each charge must have arisen in circumstances connected to the defendants homelessness or impaired capacity. To be eligible defendants were required to plead guilty or to have indicated a willingness to plead guilty to the offences as charged (Walsh p.2). The Special Circumstances Court Diversion Program has been defunded, and no alternative is available to Magistrates when sentencing a person they suspect may have impaired capacity through mental illness, cognitive impairment or intellectual disability and this impairment is linked to their committing the summary offence. Case study: Melissa Avery QCA overturned decision to imprison her for minor offences because they found that she did not have capacity to understand the charges, jail etc. Justice McMurdo in R v AAM; ex parte A-G (Qld) [2010] QCA 305 in paragraph 9 noted It seems unsatisfactory that the laws of this State make no provision for the determination of the question of fitness to plead to summary offences. It is well documented that mental illness is a common and growing problem amongst those charged with criminal offences Problems Identified by Magistrates There is no proper identification procedure in place to recognise people with intellectual disability until they appear in court. The Duty Lawyer might pick that a person has an intellectual disability, or they may not. Duty lawyers are constrained by operational limits. The magistrate will try to do his or her own assessment of a persons capacity but as one Magistrate observed they generally do so with no special training or expertise. It is an off the cuff assessment based on a single conversation at each appearance in court. Magistrates may ask questions about the persons living arrangements, financial support, and how he or she manages his or her life. The magistrate may recognise intellectual disability or other incapacity based on a persons responses and demeanour, but no concrete screening exists. Magistrates have the option to adjourn a matter for reassessment in 2-3 weeks times if the duty lawyer has identified signs of intellectual disability or other incapacity. Some Magistrates, however, will proceed even when the Duty Lawyer declines to take instructions because the person is not able to meet the capacity standard set down in Presser.  One Magistrate said that he practically adopted his own special circumstances court in cases where penalty was not an option, and looked at offenders pressing basic needs for accommodation and support. Usually people commit property offences from need rather than greed . Anecdotal evidence suggests that Magistrates will look at alternatives to the usual fine options, suspended sentences, community service and jail, but there is very little available to them. One Magistrate said that the options available varied enormously depending on geography. In the city I have some - not many - alternative sentencing options available to me. Out at Charleville? Nothing. Often it is clear to Magistrates that the prisoner lacks capacity and needs support rather than incarceration, but sometimes a custodial sentence is the only option. The dare not disappoint social expectations. Case scenario an offender stole a frozen chicken from a local butcher shop. He then went to a local pub and asked them to cook the chicken for him. Management kicked him out of the pub. He went to the local school - the one he attended as a boy. He was caught by the police while eating the now thawed chicken- in front of students. Police later arrested him for an exposure offence at a different location. The Magistrate said he believed this was a case of complete lack of capacity but the system did not allow him to recognise it as such. The Magistrate did not feel in a position to simply ignore the offences, but nor did he want to issue any kind of punitive or custodial sentence. Expanding the Queensland Mental Health Court jurisdiction procedures to include summary offences is a good way to circumvent the current artificial distinction between offences for which punishment may be similar. While longer custodial sentences are not uncommon in District and Supreme Courts, a Magistrate may impose up to three year custodial sentences for summary offences. Magistrates suggest a police proactive and preventive approach in dealing with people having intellectual disability. The horse has bolted by the time a person appears in court. Accommodation and support are more helpful for this cohort than custodial sentences. The Chapter 7 Part 2 Forensic Process Queenslands Mental Health Act 2000 (Qld) (MHA) provides a diversion o the Mental Health Court when people currently on Forensic Orders (FO) or Intensive Treatment Orders (ITO) are charged with criminal offences. QAI submits that Chapter 7 Part 2 of the Mental Health Act 2000 (Qld) (MHA) as presently drafted and implemented, provides limited benefit to a person with mental illness who comes into contact with the criminal justice system. Current position It is a basic principle of criminal law that a person of unsound mind at the time an offence was committed should not be found criminally responsible for that offence. Chapter 7 Part 2 seeks to avoid improper conviction by taking people who are subject to an ITO or forensic order out of the criminal justice process so that their mental condition can properly be examined. It also provides a pathway for people charged with a summary offence only to have their proceedings discontinued by the DPP. Problems with Chapter 7 Part 2: Chapter 7 Part 2 is mandatory for people on ITOs or forensic orders and therefore (some would argue positively) discriminates against people with mental illness and intellectual disability. Chapter 7 Part 2 presumes incapacity, in breach of Article 12 of the CRPD which provides that State Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life The law already provides a defence for people who are of unsound mind or unfit for trial. Chapter 7 Part 2 seeks to add a layer of protection, on the assumption that a person on an ITO or forensic order is more likely to be found of unsound mind or unfit for trial. It does not capture the many other people not on involuntary mental health orders who equally should not be held criminally accountable for their actions. In those cases, a person is reliant on their legal representation, the Attorney-General, the prosecution, the Director of Mental Health or the courts to ensure that the matter is appropriately dealt with. Chapter 7 Part 2 delays the progress of criminal proceedings. This is mainly due to the report that must be prepared by a psychiatrist commenting on the persons mental condition, known as a section 238 report. The legislated timeframe for such a report is 21 days. In 2011-12, this timeframe was only adhered to in 12% of matters. The vast majority (48%) was provided between 43 and 180 days and an alarming 22% took more than 180 days. This is despite the implementation of recommendations made by the Butler Report in 2006 to address this problem. Delay can have a significant adverse impact on the person charged by: increasing the time held on remand (if bail is not granted), delaying treatment, and causing prolonged stress, all which hinder recovery. Delay also impacts on victims, who have to wait an extended period of time to obtain relief. For simple and non-violent offences in particular, this delay is unacceptable. Rethinking Chapter 7 Part 2 While Chapter 7 Part 2 provides some measure of protection for people with mental illness, it is not available to all people who have mental illness. Further, its costs, both to the system and to the individual, may outweigh its benefits. In 2011-12, 1106 referrals were made under Chapter 7 Part 2: 968 to the DPP and 138 to the Mental Health Court. No statistics are provided as to the outcome of these references. However, we can discern that the large majority of matters (87.5%) relate to summary and non-serious offences, the category of offences which should be dealt with the most expediently. Any reconsideration of Chapter 7 Part 2 provisions must draw a distinction between serious indictable offences, non-serious indictable matters, and summary offences. Serious indictable offences For serious indictable offences, the purpose of the Chapter 7 Part 2 process would appear to be to speed referral to the Mental Health Court in appropriate cases, rather than rely on the patients lawyer or others to make that referral. Given the delay in most s 238 reports, referral is hardly speedy. Further, the Chapter 7 Part 2 process is not even capturing the majority of persons who should be referred to the Mental Health Court. The Mental Health Courts annual report for 2011-12 recorded 217 references: 92 from the DMH and 107 from the persons legal representative. There are added safeguards for persons charged with serious indictable offences: A person charged with a serious offence is more likely to have legal representation, either through Legal Aid or through their own private lawyer; A person charged with a serious offence is subject to more careful scrutiny by the courts, the prosecution and the treating team (if any) who can also make a reference to the Mental Health Court, even if the persons lawyer fails to do so. There are processes under the Criminal Code (eg, s 613) available to persons subject to indictable offences to argue unsoundness of mind or unfitness for trial, which are not available to persons charged with summary offences. The value of the Section 238 report is likely be superseded by subsequent reports organised by the parties or ordered by the Mental Health Court necessary to make a full and proper determination at the Mental Health Court. It is therefore submitted that the Chapter 7 Part 2 process for serious indictable offences is unnecessary and provides little benefit for the person charged. At the very least, Chapter 7 Part 2 for serious indictable offences should be by election. Non-serious indictable matters Chapter 7 Part 2 provides an opportunity for the DMH to refer matters not of a serious nature, having regard to any damage, injury or loss caused to the DPP for discontinuance (s 240(4)(a)). There is nothing to prevent the DPP from discontinuing proceedings outside of the Chapter 7 Part 2, nor does it prevent the persons lawyer or other party from referring the matter to the Mental Health Court. While there is clear benefit in the Chapter 7 Part 2 process for this category of matters, the benefit is diminished due to the delay in preparing section 238 reports. It is also not available to people with mental illness who are not under an involuntary order. A distinction needs to be made between non-serious and non-violent offences. A person may be subject of a serious matter, for example, fraud, but have not aspect of violence. Some (non mutually-exclusive) options for reform are: Allow Chapter 7 Part 2 to be by election. To cater for people who do not have capacity to make such a decision, there could be an opt out clause, a requirement that such a person have legal representation and/or power of the Courts to refer a matter to Chapter 7 Part 2. Allow Chapter 7 Part 2 to be available to all people who wish to rely upon a defence of unsoundness of mind or unfitness for trial. Given the lack of severity of the offence, allow section 238 reports to be prepared by someone with sufficient experience and training, but not necessarily a consultant psychiatrist. Better collection of data and data transparency in relation to the preparation of section 238 reports, leading to increased public scrutiny, improved analysis of reasons for delay and improved strategies to address delay. Amendments which will encourage a change in the culture of acceptance that section 238 reports will not be provided within the stipulated timeframe of 21 days. For example, penalties or incentives. Establish a diversion and support program which can help a person who is not guilty by reason of impaired capacity to access treatment and avoid entrenchment in the criminal justice system. Summary matters Under Chapter 7 Part 2, summary matters can only be referred to the DPP for continuance or discontinuance according to law. The Chapter 7 Part 2 process exists to provide the DPP with sufficient information to make its decision. Without Chapter 7 Part 2, a person would need to rely on common law at the Magistrates Court to have the matter discharged on the basis of unsound mind or unfitness for trial. This gap in statutory law was identified by the Court of Appeal in R v AAM; ex parte Attorney-General of Queensland [2010] QCA 305. A person not under an involuntary order is not availed the protection of Chapter 7 Part 2. It is also the most important that this category of matters be dealt with the most quickly. The reform options suggested for non-serious indictable matters are even more relevant to summary offences. In addition, reform could include: Amending the Justices Act 1886 (Qld) or some other Act to provide for the determination of summary offences where a person is unfit for trial or was of unsound mind. Dispensing with section 241 which allows the Director of Mental Health to defer reference for up to 4 months if the DMH believes that the person is likely to be fit for trial after that period. ..  Cf Vanny, K., Levy, M., Hayes, S. (2008), People with an Intellectual Disability in the Australian Criminal Justice System. Psychiatry, Psychology and Law. 15(2), 261-271.)  The previous state governments Disability Strategy.  Justices Examination Order a non-urgent order for medical examination issued by a Magistrate pursuant to Chapter 2, Division 2 of the Mental Health Act 2000 (Qld).  Now Professor Susan Hayes at Sydney University School of Medicine.  Lorana Bartels . 2011. Police interviews with vulnerable adult suspects Report No. 21. Canberra: Australian Institute of Criminology.  HYPERLINK "http://www.styleforum.net/t/234255/lightbox/post/6544721/id/933937" White + Carter v McGregor  Linda Steele, Intellectual Disability Rights Service (Ed) Enabling Justice- A Report on Problems and Solutions in relation to Diversion of Alleged Offenders with Intellectual Disability from the New South Wales Local Courts System:With particular reference to the practical operation of s 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW). Produced by the Intellectual Disability Rights Service in conjunction with the Coalition on Intellectual Disability and Criminal Justice & NSW Council for Intellectual Disability.  See, for example, ABC Radio national Background Briefing transcript and audio for 17 April 2011 @  HYPERLINK "http://www.abc.net.au/radionational/programs/backgroundbriefing/low-iq-and-in-jail/3004730" http://www.abc.net.au/radionational/programs/backgroundbriefing/low-iq-and-in-jail/3004730  Dan Toombs. 2012. Disability & the Queensland Criminal Justice System. Sydney: Thompson Reuters.  Brendan Butler SC. 2006. Promoting balance in the forensic mental health system. Final report. Review of the Mental Health Act 2000.  Eileen Baldry, Leanne Dowse and Melissa Clarence. 2011. Background Paper for the National Legal Aid Conference Darwin 2011.People with mental and cognitive disabilities: pathways into prison. School of Social Sciences and International Studies  Dr Tamara Walsh. 2011. A Special Court for Special Cases. T CBierne School of Law, University of Queensland.  R v Presser [1958] VR 45.  Director of Mental Health, Annual report 2011-12  Director of Mental Health, Annual report 2011-12 Cf. Mental Health Court Annual Report 2011-12 which records 92 references lodged by DMH  See Legal Aid Queensland, Criminal Law Duty Lawyer Handbook, Chapter 14, p 209       PAGE \* MERGEFORMAT 21  Submission 69   Systems and Legal Advocacy for vulnerable people with Disability Queensland Advocacy Incorporated 2nd Floor, South Central, 43 Peel Street, STH BRISBANE QLD 4101 (PO Box 3302 STH BRISBANE BC QLD 4101) QAI endorses the objectives, and promotes the principles, of the Convention on the Rights of Persons with Disabilities. 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