This procedure relates to the preparation of reports requested by the Children’s Court under s.38ZR of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

 

When to use this procedure

When the court is considering placing a young person with a mental impairment on a supervision order.

 

What else you need to know

 

Practice context and legislation

  • If the court is considering placing a young person on a custodial or non-custodial supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ('the Act'), the court must adjourn the hearing and request that the department prepare, or arrange preparation of, a s.38ZR report and a s.47 Certificate of Available Services.
  • The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 creates a role for the Secretary of the Department of Health and Human Services ('the department') in relation to services available to a child with a mental impairment if a court is considering:
    • detention on remand
    • imposing a non-custodial supervision order
    • imposing a custodial supervision order.
  • A custodial supervision order is served in a youth justice centre.
  • Mental impairment can occur by way of:
    • mental illness
    • disability
    • mental illness and disability
  • A court must determine unfitness to stand trial. If the question of fitness to be tried arises, the matter is adjourned and the young person is released to the community, or remanded to a youth justice centre, whilst fitness to be tried is investigated.
  • Any decision to remand a young person, where there is a question of fitness, requires the court to request the preparation of a concise Certificate of Available Services under s.47 of the Act.
  • The investigation into fitness is arranged by the court.
  • Upon completion of the investigation, the young person may be found to be:
    • Fit to be tried
    • Unfit to be tried, but may become fit within six months
    • Unfit to be tried, and unlikely to become fit within six months.
  • If the young person is found unfit to be tried, and unlikely to become fit within six months the court may:
    • consider the young person liable to supervision
    • discharge the young person
    • release the young person unconditionally.
  • If the young person is considered liable for supervision, the court may place them on:
    • a custodial supervision order, requiring the young person to be detained in a youth justice centre, or
    • a non-custodial supervision order requiring the young person to be released subject to conditions decided by the court.
  • Prior to issuing these orders, the court must adjourn the hearing and request that the department prepare, or arrange preparation of, a s.38ZR report and a s.47 Certificate of Available Services.
  • While the reports are being prepared the court may remand the young person in custody or grant bail until the date of the supervision order hearing. Any decision to remand a young person requires the court to request the preparation of a concise Certificate of Available Services under s.47 of the Act.
  • Depending on the assessed needs of the child as advised by the investigation, the s.38ZR report may be prepared, or arranged to be prepared, by the Mental Health branch and/or Disability Client Services, Youth Justice, or Child Protection.
 

Roles and key tasks

Youth justice court advice service worker

  • Identify cases where fitness to plead and mental impairment may be relevant to court proceedings
  • Advise the court of the requirement to request a Certificate of Available Services if the court is considering remand or a supervision order for a young person where mental impairment and fitness to plead is a relevant issue.
  • Liaise with case manager where fitness to plead and mental impairment is relevant for a current youth justice client

Case manager

  • Where youth justice is the lead program, conduct interviews to obtain information, undertake case management, implement referrals and prepare section 38ZR report.
  • Collaborate with relevant departmental programs
  • Identify services available to the young person
  • Prepare section 47 Certificate of Available Services
  • Submit report to Legal Services Branch for approval

Team leader / team manager

  • Provide consultation and supervision to case manager.
  • Review section 38ZR report and section 47 Certificate of Available Services prior to seeking final endorsement

Assistant Director / Manager Individual and Family Support

  • Provide oversight, direction and monitoring of the area youth justice program.
  • Provide case consultation particularly in relation to young people exhibiting high-risk behaviours.
  • Liaise with Legal Services Branch to determine most appropriate program to take the lead in preparing section 38ZR report and section 47 Certificate of Available Services
  • Determine which program (Disability Client Services, Youth Justice or Child Protection) will take the lead in the preparation of the s38ZR report
  • Where the subject of the report is currently involved with Child Protection, consult with the relevant Area Manager of Child Protection.
  • Where the court is considering placing the young person on a custodial supervision order, consult with the General Manager, Parkville Youth Justice Precinct.
  • Endorse and sign the section 38ZR report

Youth Justice Senior Practice Advisor

  • Provide consultation on case management and report recommendations issues, particularly in relation to high-risk clients.
  • This should occur subject to local area agreements between Assistant Director / Manager Individual and Family Support and the Youth Justice Senior Practice Adviser.

General Manager, Parkville Youth Justice Precinct

  • Where the court is considering placing the young person on a custodial supervision order, provide consultation to the Assistant Director / Manager Individual and Family Support, and indicate if a bed is available to the young person. 

Deputy Secretary

  • Endorse and sign the section 38ZR report
 

The procedure in detail

Section 38ZR report when the court is considering a supervision order

The purpose of the s.38ZR report is to provide relevant background information regarding a young person being considered for a supervision order, and specify services which are available to the child/young person

If the court is considering placing a young person on a custodial or non-custodial supervision order, committing the child to a youth justice centre, or to receive services in the community, the court must adjourn the hearing and request that the department prepare, or arrange preparation of, a s.38ZR report.

Determining responsibility for preparing a s.38ZR report

The steps involved in developing a s.38ZR report will commence as soon as the department receives a request from the court.

The court will send requests for the s.38ZR report and certificate to the Legal Services Branch of the department.

The request and associated documentation from the court should assist to determine whether the young person has been assessed as having a mental illness and/or disability.

The Legal Services Branch will allocate responsibility for the s.38ZR report and the certificate, to the appropriate departmental area and personnel, based on the nature of services required by the young person, and in consultation with the Assistant Director/Manager Individual and Family Support, Youth Justice and Disability Forensic Unit and the Mental Health Branch of the department.

The s.38ZR report may be required in relation to mental illness, disability, or both mental illness and disability.

Preparing and endorsing a s.38ZR report relating to mental illness

If the court requests the report in relation to mental illness, the preparation of the report will be arranged by the Mental Health Branch of the department.

The Legal Services Branch, in consultation with the Mental Health Branch, will send the request to the relevant child and adolescent mental health service or other area mental health service provider.

The child and adolescent mental health service prepares the s38ZR report and the s.47 certificate. The Mental Health Branch then reviews the report and certificate. Departmental endorsement is not required for these reports.

Preparing and endorsing a s.38ZR report relating to disability

If the court requests the s.38ZR report in relation to disability, the Legal Services Branch, in consultation with the Youth Justice and Disability Forensic Unit, will send the request to the Assistant Director / Manager Individual and Family Support of the relevant departmental area.

Based on the young person’s current or previous involvement with the department, the Assistant Director / Manager, Individual and Family Support will determine which program (Disability Client Services, Youth Justice or Child Protection) will take the lead in the preparation of the s38ZR report, in consultation with other relevant programs as required.

Where the subject of the report is currently involved with Child Protection, the Assistant Director / Manager, Individual and Family Support must consult with the relevant Area Manager of Child Protection.

The departmental area lead program is responsible for preparing the s.38ZR report and the certificate. The author must take into account the Children’s Court Clinic or other report associated with the fitness investigation, any previous s.47 certificates, and any other clinical reports considered by the court.

The authority for endorsing s38ZR reports is delegated to the Deputy Secretary of the departmental division, and the Assistant Director / Manager, Individual and Family Support. One of these delegates must endorse and sign the s.38ZR report.

Preparing and endorsing a s.38ZR report relating to mental illness and disability

If the court requests s.38ZR report and certificate in relation to both disability and mental illness, the Legal Services Branch, in consultation with the Mental Health Branch and the Youth Justice and Disability Forensic Unit, will send the request to the relevant child and adolescent mental health service and the Assistant Director / Manager, Individual and Family Support of the relevant departmental area.

Based on current or previous involvement with the department, the Assistant Director / Manager, Individual and Family Support will determine which departmental program (Disability Client Services, Youth Justice or Child Protection) is to take the lead in the preparation of the s38ZR report and certificate, negotiating with relevant programs as required.

Where the subject of the report is currently involved with Child Protection, the Assistant Director / Manager, Individual and Family Support must consult with the relevant Area Manager of Child Protection.

Only one s.38ZR report should be submitted by the Secretary to the Court, to address both mental health and disability.

The area lead program is responsible for compiling the s.38ZR report relating to mental illness and disability. The area lead program, the Mental Health Branch and the child and adolescent mental health service, should collaborate on developing the service response, however responsibility for preparing and submitting the report to the court, lies with the area lead program (Disability Client Services, Youth Justice or Child Protection).

The child and adolescent mental health service prepares a s38ZR report and certificate regarding mental illness, and this will inform the certificate and report prepared by the area lead program. The Legal Services Branch will provide the area lead program with a copy of the report and certificate prepared by the child and adolescent mental health service.

The report prepared by the area lead program must incorporate information included in the s.38ZR report prepared by the child and adolescent mental health service. The area lead program should include the report prepared by the child and adolescent mental health service as an attachment to the report to be submitted to the Court and, where relevant, make references to the child and adolescent mental health service response in the report.

A request should be made to the Children’s Court to release any relevant reports to the department to assist with the preparation of the s.38ZR report and the certificate. The authors must read the Children’s Court Clinic report provided at the time of the fitness investigation, and any other clinical reports considered by the court.

The authority for endorsing s38ZR reports is delegated to the Deputy Secretary of the departmental division, and the Assistant Director / Manager, Individual and Family Support. One of these delegates must endorse and sign the s.38ZR report.

Sources of information

Sources of information that will assist in the preparation of a s.38ZR report by the department, include:

  • information contained in the Children's Court Clinic fitness investigation report
  • information contained in previous clinical reports, referred to by the court, that address the issue of fitness to plead
  • any s.38ZR reports prepared by the child and adolescent mental health service
  • previous s.47 certificates prepared if the court was considering remand
  • any current s.47 certificate prepared by child and adolescent mental health services, as to services for the child if placed on a supervision order.

Content of the s.38ZR report

The report must set out whether the child or young person has a mental illness or other condition, or disability and, if so, the services which are available and appropriate for the child. The department should only make assertions regarding a child or young person's mental illness or disability, after consideration of a report prepared by a psychiatrist, arranged by the Mental Health Branch, or through consideration of an assessment conducted by the Children's Court Clinic or other registered medical practitioner.

The outcome of the target group assessment/s must be accurately reflected in the report.

The Act prescribes in s.38ZT that the s.38ZR report must state the services currently being made available to the child, whether or not provided by a government department, and whether the child has complied with those services. If the other services accessed by the child/young person are not known, this information should be obtained from his or her lawyer. The area lead program should contact the service providers to obtain information regarding the nature of services the young person is currently accessing, and the young person's level of engagement.

If the court requests, the report must state the services that would be made available to the child if a custodial supervision order were made. Otherwise it need only state the services that would be made available if a non-custodial order were made. Any statement regarding services available to the young person on a custodial supervision order, should only be made after consultation between the Assistant Director/Manager, Individual and Family Support and the General Manager, Parkville Youth Justice Precinct.

If the court requests information about services that would be provided if a custodial supervision order is made, and the department believes that a custodial supervision order is unsuitable, the report must include alternative community based options to address the child’s needs and risk.

The report may include a recommendation as to whether a non-custodial or custodial supervision order is appropriate.

If the department has issued a statement that the child has a disability within the meaning of the Disability Act, the report must include a copy of the statement.

Refer to the ‘Report to the Children’s Court - Required under s.38ZR’ template for further information regarding the content to be included in each section of the report.

Finalising the s.38ZR report

The s.38ZR report and the certificate must be provided to the court as soon as possible after receiving the request. The s.38ZR report and certificate must both contain information regarding services that are available to the young person, and must be consistent. Both documents should be submitted to the court at the same time. Section 47 specifies that the certificate must be provided within 7 days, however this may not be possible, and it may be necessary to negotiate with the court for a longer timeframe.

Drafts of all s.38ZR reports and certificates must be sent to the Legal Services Branch for review and comment. Staff should endeavour to send reports to the Legal Services Branch, at least 8 days prior to the supervision order hearing by email to the Legal Services Branch at cmia.reports@dhhs.vic.gov.au (External link), with the subject line clearly stating: 'Draft CMIA report regarding Mental Health / Disability / Mental Health and Disability' (choose one).

If a child and adolescent mental health service, or other area based mental health service, has prepared a report and certificate, the Legal Services Branch will forward the report and certificate to the Mental Health Branch of the department for review and reference. In cases of both mental health and disability, the Legal Services Branch will also forward that report to the author of the area lead program’s report. This information will inform the report prepared by the area lead program, and be included as an attachment to the area lead program’s report.

When feedback is received from the Legal Services Branch, amendments are to be made by the area lead program, and the documents can then be finalised and signed by the author of the report, and the Secretary’s delegate.

The area lead program then scans a copy of the signed s.38ZR report and certificate onto the young person’s CRIS file.

The area lead program must file the original signed s.38ZR report and certificate with the requesting court at least three working days before the supervision order hearing. All reports should be addressed to the Registrar of the court, using the ‘CMIA court report cover sheet’ template.

Attending court

It is the expectation of the court that the department be represented at the supervision order hearing where the s.38ZR report and the certificate will be considered.

Department areas will determine the most suitable department representative/s to attend the hearing, which may include the Secretary’s delegate responsible for authorising the reports, the author of the reports, other managers, team leader or allocated worker.

The Secretary's delegate, (the Deputy Secretary of the Division or Assistant Director / Manager, Individual and Family Support), must be satisfied that the department representative/s is well-placed to give evidence on behalf of the department about any matters raised in the s.38ZR report and the certificate, as well as issues about the scope of services available from the department.

Supervision order review hearing

Under s. 38ZI, when making a supervision order, the Court must direct the matter be brought back to the court for review at the end of the order. A supervision order is for a term not exceeding 6 months that is specified by the Children's Court.

The term of a supervision order may be extended more than once by a maximum of 6 months but so that the total period of the order does not exceed:

  • 12 months, in the case of a child aged 10 years or more but under 15 years at the time of the making of the supervision order; and
  • 24 months, in the case of a child aged 15 years or more but under 21 years at the time of the making of the supervision order.

The department must must prepare, or arrange, a s.38ZR review report for the supervision order review hearing.

Section 38ZR Review reports relating to mental illness

At the request of Mental Health Branch of the department, the treating psychiatrist prepares a clinical s.38ZR report addressing the child or young person’s progress on the supervision order. This report will be submitted to the Legal Services Branch and distributed to the Mental Health Branch for review and submission to the court.

The Mental Health Branch, must file the s.38ZR review report, and/or the treating psychiatrist's report, with the requesting court at least three working days before the supervision order review hearing.

All reports should be addressed to the Registrar of the court, using the 'CMIA court report cover sheet' template.

There is an expectation that the treating psychiatrist who has prepared a report at the request of the Mental Health Branch attends court on the date of the review hearing.

Section 38ZR Review reports relating to disability

The departmental area lead program prepares the review report, in consultation with other involved departmental programs.

The Act requires the review report to be a s.38ZR report, therefore the area lead program must clearly indicate that the review report has been prepared under  section 38ZR of the Crimes (Mental Impairment and Unfitness to be Tried) Act. The format of the review report is the same as the s.38ZR report, with updated information included under the relevant headings. If there is not any information to update under particular headings, the reason for the lack of change should be explained where possible. The s.38ZR review report should include:

  • a statement of any treatment, therapy or counselling, or any services that the person has received since the making of the order or the last report
  • changes to the prognosis of the young person’s condition, the plan for managing the condition, and the services currently available to the young person
  • changes in the young person’s circumstances since the order was made
  • a recommendation as to whether the recommendations contained in Certificate of Available Services are still appropriate, and whether a non-custodial or custodial supervision order is appropriate

Once the s.38ZR review report has been drafted, and approved by local line management, the draft report must be sent to the Legal Services Branch for review and feedback at least eight days before the supervision order review hearing. This must be emailed to the Legal Services Branch at cmia.reports@dhhs.vic.gov.au (External link), with the subject line clearly stating: 'Draft CMIA review report regarding disability'.

Once feedback is received from Legal Services, any suggested amendments are to be made, and the documents can then be finalised and signed by the author of the report, as well as the Secretary’s delegate.

The area lead program must file the s.38ZR review report with the requesting court at least three working days before the supervision order review hearing. All reports should be addressed to the Registrar of the court, using the ‘CMIA court report cover sheet’ document.

The area lead program should scan and place a copy of the signed s.38ZR review report on the young person’s CRIS file.

It is the expectation of the court that the department be represented at the Supervision Order review hearing where the s.38ZR review report will be considered.

Section 38ZR Review reports relating to mental illness and disability

At the request of Mental Health Branch of the department, the treating psychiatrist prepares a clinical s.38ZR report addressing the child or young person’s progress on the supervision order. This report will be submitted to the Legal Services Branch and distributed to the Mental Health Branch for review.

The Legal Services Branch will forward the clinical s.38ZR review report to the area lead program, to inform the area lead program’s s.38ZR review report related to mental illness and disability, and be included as an attachment to that report.

Once the area lead program has drafted the s.38ZR review report, the draft report must be sent to the Legal Services Branch for review and feedback, at least 8 days prior to the court date. The report must be emailed to the Legal Services Branch at cmia.reports@dhhs.vic.gov.au (External link), with the subject line clearly stating: 'Draft CMIA review report regarding Mental Health/Disability/Mental Health and Disability' (choose one).

Once feedback is received from the Legal Services Branch, amendments are to be made by the area lead program, and the documents finalised and signed by the author of the report, as well as the Secretary’s delegate as per the Authorisation section of this instruction.

The area lead program then scans a copy of the signed s.38ZR review report onto the young person's CRIS file.

The area lead program must file the s.38ZR review report with the requesting court at least three working days before the supervision order hearing. All reports should be addressed to the Registrar of the court, using the 'CMIA court report cover sheet' template.

There is an expectation that the treating psychiatrist who has prepared a report at the request of the Mental Health Branch attends court on the date of the review hearing. Where a report has been prepared by the department, it is the expectation of the court that the department is represented at the review hearing, where a report has been prepared by the department.

CRIS

Where the template is not incorporated in CRIS, the area lead program responsible for preparing the s.38ZR report must use the MS Word template to prepare this document.

The following guidelines relate to generating the s.38ZR report in CRIS for Youth justice staff only.

When the Children's Court requests a report under s.38ZR, the following process should be followed in CRIS:

  • Navigate to the Court Appearances tab
  • Select 'Create Court/Tribunal Appearance'
  • Enter the date of the hearing
  • Select 'CMIA Special Hearing' as the Hearing Type
  • Select 'CMIA Adjournment' as the Court/Tribunal Outcome.
  • Enter the date the matter is adjourned to (the Supervision Order Hearing date) as the Return/review Date is the date
  • Enter all other information as normal
  • Navigate to the Notes and Documents tab within the court appearance, and enter a case notes indicating the request for the s.38ZR in the Subject field

Before commencing the s.38ZR report, the Court appearance for the supervision order hearing must be created.

  • Navigate to the Court Appearances tab
  • Select 'Create Court/Tribunal Appearance'
  • Enter the date of the hearing for which the report has been requested
  • Select 'CMIA Supervision Order Hearing' as the Hearing Type
  • Enter the offence details under Charges.
  • Do not enter any other details until the matter has proceeded.

When preparing the s.38ZR report, the following process should be followed in CRIS:

  • Navigate to the Court Appearances tab
  • Open the 'CMIA Supervision Order Hearing' court appearance for which the report is being prepared
  • Navigate to the Notes and Documents tab within the court appearance
  • Create a Document with Component: Court appearance and click Go
  • Select the document with Document name: 's.38ZR Report to the Children’s Court'
  • Enter information into all fields on report, generate and obtain endorsement of report, as per usual processes.

When preparing the s.38ZR progress report, the following process should be followed in CRIS:

  • Navigate to the Court Appearances tab
  • Open the 'CMIA Supervision Order Hearing' court appearance for which the report is being prepared
  • Navigate to the Notes and Documents tab within the court appearance
  • Create a Document with Component: Court appearance and click Go
  • Select the document with Document name: 's.38ZR Report to the Children’s Court'
  • The information entered when the original s.38ZR Report, will still appear in the fields on CRIS. 
  • Update the information contained in all fields. If an update is not provided under any fields, provide an explanation where possible.
  • Generate and obtain endorsement of report, as per usual processes.