Juvenile Fitness for Trial: Psychiatrists, Psychologists and Lawyers(O)Watt, B. D., O’Leary, J., & O’Toole, S.

CRICOS CODE 00017B

Our research objectiveTo consider the adequacy of current safeguards, both legal and forensic, relating to the treatment of juvenile offenders who may lack fitness to plead in QLD courts Why are we interested?•Our collective experience as practitioners in law, social work & forensic psychology•Our discussions with current practitioners, particularly in relation to some groups e.g. petrol sniffers•International research focusing on juvenile adjudicative competence•An absence of Australian research on this (important) topic

The test for unfitness in QLD• Where unfitness (relating to cognitive impairment) is in issue, the

question can be determined either by a jury in superior courts or more often by the Mental Health Court (MHC).

• Separate statutory tests apply depending on whether unfitness is raised in superior courts OR the MHC, but regardless, both are informed by the common law test in R v Presser [1958] VR 45:

To be fit to stand trial the accused must be able to :• understand the nature of the charge• plead to the charge• exercise the right to challenge the empanelling of jurors• understand the nature of proceedings• follow the course of proceedings in a general sense• understand the substantial effect of evidence against them• make a defence or answer the charge• (if represented) instruct counsel

Year Total number

of references

Adult

references

References < 17

years at time of

offence

Percentage of

adult references

Percentage of

references < 17 years

at time of offence

2006/2007 251 244 7 97.21 2.79

2007/2008 332 322 10 96.99 3.01

2008/2009 195 191 4 97.95 2.05

2009/2010 219 214 5 97.72 2.28

2010/2011 226 217 9 96.02 3.98

TOTAL 1223 1188 35 97.14 2.86

Referrals to the MHC

Method

Semi-structured interviews with professionals who work with juvenile defendants in QLD:

•20 youth justice workers.•20 legal professionals.•Seven mental health professionals.

MeasureInterview schedule designed for current study:•Definition of fitness for trial and relevant conditions.•Number of young people whom fitness was a concern over the preceding 12 months.•For each juvenile, demographics, the underlying condition, relevant Presser rule and outcome.•Ratings for most relevant reason of non-referral to QLD Mental Health Court.

Results

Table 1

Number of Juveniles Considered Unfit for Trial by Profession

Profession N M SD Range Legal 19 3.47 4.32 0-18 Mental Health Expert 7 0.86 1.46 0-4 Youth Justice 20 2.75 1.91 0-7 Total 46 2.76 3.18 0-18

ResultsTable 2

Age, ethnicity and English Speaking Background across Bases for Potential Unfitness

Condition N Age M (SD) ATSI % NESB % MH Referral %

Mental Illness 45 14.93 (1.32) a 38.6 8.9 48.9

Intellectual Impairment

63 14.41 (1.49) a 30.7 a 11.1 50.8a

ABI 3 14.67 (0.58) 0.0 0.0 33.3

Immaturity 37 13.27 (1.39) b 81.1 b 2.7 8.1b

Other 3 15.33 (0.58) 100.0 0.0 0.0

Total 151 14.31 (1.52) 48.7 7.9 38.4

Note ATSI = Aboriginal and Torres Strait Islander, NESB = non-English Background, ABI = Acquired Brain Injury, MH = Referred to Mental Health Expert for assessment. Differing superscript within column p <.05.

Results

Table 3

Proportion of Juveniles with Potential Presser Ability Deficits by Underlying Condition

Presser Rule - Percentage Condition N a b c d e Mental Illness 45 57.8a 75.6 73.3a 77.8a 73.3 Intellectual Impairment 63 52.4a 81.0 66.7a 74.6a 73.0 ABI 3 33.3 66.7 66.7 66.7 33.3 Immaturity 37 29.7b 89.2 45.9b 97.3b 94.6 Other 3 100.0 100.0 100.0 100.0 100.0 Total 151 49.0 81.5 64.2 81.5 78.1 Note ABI = Acquired Brain Injury. Presser Rule a = nature of the charge, b = nature of the proceedings, c = communicate with counsel, d = pleas, elections and defences, e = decisions in best interests. Differing superscript within column p <.05.

Results

Table 4

Professional Ratings for Reasons non-Referral to Mental Health Court

Non-Referral Reason M (SD)

Legal Mental Health Expert Youth Justice Total

N 19 7 20 46 Substantive Uncertainty 2.84 (1.57) 2.00 (1.00) 2.40 (1.05) 2.52 (1.30) Procedural Uncertainty 2.63 (1.26) 2.29 (0.76) 2.35 (1.09) 2.46 (1.11) Pragmatic/tactical reasons 1.89 (1.24) 1.14 (0.38) 1.80 (0.89) 1.74 (1.02)

Lack of resources 2.16 (1.30) 2.00 (1.29) 2.55 (1.47) 2.30 (1.35) Other 1.42 (1.17) 1.80 (0.45) 1.50 (1.00) 1.50 (1.23)

Wasn't really picked up and has never been assessed. Mental health court often takes a long time to go through. Previously been through children's court. Solicitor takes over and does not ask as much of the juvenile.

Implications – Lack of referral to MHC

• Legal Practitioners (LPs) and Youth Justice Officers (YJOs) have concerns about fitness for significantly > young people than are being referred to the MHC per year– Limitations

• Subject to recall• Can’t exclude double counting• Limited sample of practitioners

Implications – Lack of referral to MHC

• Analysis of LP responses– Approx 19% of children LP’s identified as having

concerns re fitness referred to MHC• Only another 10% otherwise discontinued by Pros/in

lower courts

Therefore - Low numbers of referrals to MHC not purely related to low numbers for whom LP’s have concern

Implications – Lack of referral to Mental Health Experts

• LPs only refer to Mental Health Experts for assessment 53% of the time

• Without such assessment - discontinuance and/or referral to MHC less likely

• Reasons for non-referral for assessment– Largely immaturity (indicates the current process

for dealing with fitness due to immaturity may be inadequate or underutilised)

Implications - Pragmatism

• Reasons for non-referral to MHC in QLD largely pragmatic/tactical/other:– Eg. From LPs

• Penalties were so minor so it was easier to get it out of the way.

• Easier and quicker to plead out. Takes too long to go through MHC.

– Eg. From YJOs• Process takes too long.

Summary

• More children identified as having fitness issues than ultimately referred to MHC

• Non-referral only partially explained by discontinuance

• Immaturity is a potential unfitness issue - its lack of recognition provides reason for non-referral to Mental Health Experts/MHC

• Pragmatic/tactical/other reasons observed as main reasons for non-referral to MHC

CRICOS CODE 00017B

Suzie O’Toole: sotoole@bond.edu.au Bruce Watt: bwatt@bond.edu.au

Jodie O’Leary: jooleary@bond.edu.au