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New report on insanity pleas

TLRI bradfield

Fairer laws for people with mental health or cognitive impairments facing court are being called for by the Tasmanian Law Reform Institute.

A new report - which was originally prompted by former Attorney-General, the late Vanessa Goodwin - has made 3 recommendations. 

The TLRI reviewed the defence of insanity in s16 of the Criminal Code and fitness to plead set out in the Criminal Justice (Mental Impairment) Act 1999 for dealing with people who are not criminally responsible either because they are unfit to stand trial or because they have been found not guilty by reason of insanity.

The Criminal Justice (Mental Impairment) Act 1999 had not been reviewed since its commencement and it was found to not reflect contemporary understandings of mental health.

“Mental health and cognitive impairment affect people’s ability to participate in ordinary processes of the criminal justice system,” report author and TLRI researcher Dr Rebecca Bradfield said.

The report states that forensic orders – which can be used by the court following a special hearing or a finding of ‘not guilty by reason of insanity’ in a regular trial – tend to lead to longer restrictions on freedom.

1) It calls for a time limit to be placed on them instead. The time limit would be based on the court’s best estimate of the length of the person’s sentence if she or he had been found guilty at a normal trial. This could be extended for community safety.

2) The report also recommends that the test of ‘fitness to stand trial’ takes a more supportive approach.

“The current focus of the fitness test is on a person’s cognitive capacity or intellectual ability to understand features of the criminal trial,” Dr Bradfield said.

“The fitness test does not give adequate recognition to whether the accused can participate meaningfully in his or her trial. The TLRI recommends a shift from the current focus on cognitive capacity to a
supported decision-making approach.”

3) The report also recommends renaming ‘defence of insanity’, which came into use in the 18th century, to fit current medical knowledge and language. The recommended term is ‘defence of mental or cognitive impairment’.

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