Victoria Legal Aid

Record of assessment of capacity

File checklist–mental impairment

To be completed in all cases where the child was aged 14 or more at the time of the offence and, after the lawyer uses Record of assessment of mental impairment, considers that mental impairment might be an issue.

Issues and tasks checklist

Issues / Comment (Y/N and notes)
Take instructions from the client and assess the issue of mens rea using
  • record of instructions – duty lawyer
  • record of assessment of capacity, and
  • record of assessment of mental impairment
Obtain general authority for reports using 'VGA2030 - Authority_Medical records and report_Health Act'
Incomplete brief of evidence? Further disclosure required? Matters to consider include:
  • DVD record of interview
  • Statements of all witnesses
  • CCTV or other recordings of the offending
  • Planning of actions (complex preparation cf spur of the moment)
  • Client’s role in offending (principal or marginal participant)
  • Details of all prior contact with the police
  • Any other evidence the police intend to lead to rebut doli.

Prima facie evidence that the client was mentally impaired at time of offence?
See definition in s 38ZA Crimes (Mental Impairment and Unfitness to be Tried):
  • At the time of engaging in conduct the child was suffering from a mental impairment that had the effect that:
  • He or she did not know the nature and quality of the conduct; or
  • He or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong)
If applicableinclude details in Brief Analysis and Case Strategy Tool - Checklist_Lawyer_Brief analysis and case strategy_manual
If not applicable end of checklist
Existing expert reports? Medical, psychiatric, other? Matters to consider include:
  • Any educational assessments, especially if at a special school
  • Any disability assessments, especially if registered with Disability Services
  • Any treating medicos especially if seeing a paediatrician, child psychiatrist, psychologist or counsellor – if available get copies using 'Ltr_Expert_medical report_treating practitioner'

If MI is in issue, an expert assessment to confirm mental impairment is to be obtained
Matters to consider include:
  • Get medical report form signed by your manager
  • Private or Clinic?
  • If private:
  • Obtained approval from Manager to request aid for report? (add link to form here)
  • Book appointment (see experts register) avoiding delay
  • Notify the client of the appointment in writing (Ltr_Client_psych appointment)
  • Send letter to the expert with necessary enclosures and details (Ltr_Psychiatrist_request new assessment and report mental impairment_fitness)
  • Remind the client by phone the day before the appointment
  • Diarise report return
  • All police and other material available before assessment – provide to expert
  • Review report to ensure all questions asked have been answered and all available evidence is considered to minimise impact of examination by prosecution

Process to follow if defence of MI to be raised:
  • Reasonable notice of the defence must be given to the prosecution s 38ZB (4), although the issue may be raised at any time during the hearing s 38ZC (and by either side)
  • If the accused is arguing mental impairment: Issue subpoena for private expert at least two weeks before the hearing date
  • If the accused or prosecution raised the argument and the matter went to the Children’s Court Clinic: Send Ltr_pre_Other_Childrens Court Clinic to the Court to require attendance of the Clinician Procedure on investigation at least two weeks before the hearing date
  • If matter proceeding to special hearing, book and brief counsel as soon as possible (Note coordinated In House Briefing Policy
  • Appeal against not guilty due to mental impairment finding within 28 days s 38ZE
  • If not guilty of the offence – matter concludes, end of checklist

Outcomes
  • If not guilty because of mental impairment:
  • Released unconditionally? DPP has the right to appeal within 28 days under s38ZAA, otherwise end of checklist
  • Liable to supervision?
  • May appeal within 28 days s38ZJ
  • Custodial? Must have a report and certificate under s 38ZH(6)
  • Max 6 months – note date for review at the end

  • Extension of supervision order?
  • 10-14 at the time of making the supervision order max 6 months extension to total 12 months (s 38ZI(3)(a)) – note final date
  • May appeal within 28 days s38ZJ
  • 15-21 at the time of making the supervision order max 6 months extension to total 24 months (s 38ZI(3)(b)) – note date for next review
  • May appeal within 28 days s38ZJ
  • 15-21 note date for final review
  • May appeal within 28 days s38ZJ

Work instruction

  • You must complete this record fully and accurately. This will help to demonstrate that you have met the duties of competence and standard of care expected of a lawyer.
  • In most instances this document would be considered a client document and given to the client upon request. It could also be disclosed under the FOI Act.

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