Mentally Impaired Accused Bill Passes Assembly in WA

Monday 29 September 2014 @ 9.23 a.m. | Crime | Legal Research

In a follow up to a previous article written by TimeBase, Western Australia's Legislative Assembly has passed the Declared Places (Mentally Impaired Accused) Bill 2013 with amendments and it remains to be debated in the Legislative Council.

Background to the Bill

The Declared Places (Mentally Impaired Accused) Bill 2013 (the Bill) is an extension of the previously introduced Criminal Law (Mentally Impaired Accused) Amendment Bill 2014 which was negatived at second reading speech stage on 11 June 2014.

Rather than enabling magistrates and the judiciary to deal specifically with mentally impaired offenders, the Bill makes provision for matters relating to places established by the Disability Services Commission for the detention, habilitation and rehabilitation of mentally impaired accused, and as a consequence to amend the Criminal Law (Mentally Impaired Accused) Act 1996 (WA); the Disability Services Act 1993 (WA); and certain other Acts.

Currently, people who have been charged with an offence but not tried or convicted may be subjected to an indefinite Custody Order under the Criminal Law (Mentally Impaired Accused) Act 1996. A person who is 16 years old or over who has an intellectual disability or cognitive impairment may be ordered to be detained in declared place by the Mentally Impaired Accused Board. At present, in the absence of a declared place, these people are held in a prison (adults) or detention facility (juveniles).

The purpose of the Bill is to enable the Disability Services Commission to operate Western Australia’s first declared place that will provide accommodation and support services for people with intellectual or cognitive disability who have been accused but not convicted of a crime. It will provide, for the first time, an appropriate alternative to custody in prison—one which is designed and staffed to provide a therapeutic environment that can provide social support and life skills training, while providing levels of security that are required to ensure community safety.

The issue of people with intellectual disability or cognitive disability who are not convicted of offences being detained in the mainstream prison system has been a significant social policy issue within Western Australia and remains so in all jurisdictions.

The Criminal Law (Mentally Impaired Defendants) Act 1996 made provision for declared places when enacted; and modernised and clarified the criminal law applying to those found unfit to plead or of unsound mind. The act sought to ensure, as stated by Minister Prince in the second reading speech:

…the paramount goal of a safe and secure environment for all Western Australians while ensuring that all participants in the criminal justice system are treated fairly and equitably and the process itself is cost efficient and effective.

Proposed Operation of the New Bill

The Bill will operate under the framework established by the Criminal Law (Mentally Impaired Accused) Act 1996. Mental impairment under this act includes intellectual disability, mental illness, brain damage and senility. A mentally impaired accused person can be found unsound of mind at the time of the offence or unfit to stand trial. To ensure legislative consistency with the Criminal Code and the Criminal Law (Mentally Impaired Accused) Act 1996, the Bill does not refer to intellectual disability, cognitive disability or autism spectrum disorder, the technical definitions of which have been and may continue to be subject to change. It specifies that the Mentally Impaired Accused Review Board, when deciding the place of custody for a mentally impaired accused person, should choose a declared place only when the person has reached 16 years of age, the person has a disability recognised under the Disability Services Act 1993 definition of disability and the predominant reason for the person’s mental impairment is not a mental illness.

The two new, purpose-built declared places specified under the new Bill, each with a maximum capacity for 10 residents, will be operated by the Disability Services Commission. The Bill provides the Disability Services Commission with all the powers necessary to operate a declared place, control residents’ behaviour, provide a suitably secure environment, safeguard residents’ welfare and provide them with individualised services directed to returning them to the community as participating and responsible citizens.

The granting of necessary and appropriate powers of detention to the Disability Services Commission has needed to be balanced with provisions that prevent any abuse of those powers and ensure accountability, transparency, and the protection of residents’ rights. It is vital that the monitoring of declared places be undertaken by a body independent of the commission. It would be inappropriate for that body to be established and contracted directly by the commission. The monitoring body needs to have experience and expertise in oversighting services that combined custody with treatment, training or social support.

Reaction to Declared Places

In an opinion piece appearing in the West Australian Newspaper upon introduction of the bill, the community sentiment was effectively expressed as:

"Disability justice centres are custodial environments but they are not urban prisons...We call on the State Government to develop a planning framework that recognises that community based services are essential and also provides community confidence in how decisions are made."

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.