Towards Objectifying Mentally Unfit for Trial in South Australia: Creation of the MacCAT-Au(SA)
Thesis Confirmation Proposal
for the
Doctorate of Psychology (Clinical and Forensic)
Sam van der Wijngaart
6 August 2010
Towards Objectifying Mentally Unfit for Trial in South Australia: Creation of the MacCAT-Au(SA)
Abstract
The right to a fair trial is the undisputed cornerstone of the criminal justice system in all modern nations. Integral to a fair trial must be the ability of the accused to participate in the trial – they must be able to, at some level, understand the law and proceedings sufficiently to be able to defend themselves. If they cannot, for whatever reason, sufficiently comprehend proceedings, understand what is occurring, and explain their version of events, then no fair trial is possible. In some cases therapeutic, medical or other interventions may be possible to restore competency. In very general terms, this is the principle of fitness to plead (FtP), or competency to stand trial. The legal criteria and terminology vary from place to place, however no modern legal system today functions without mechanisms in place to fairly deal with persons who may not have the ability to adequately partake in the legal process.
Historically, the criteria for fitness to plead have been outlined by legal precedents, and based on case law. In many jurisdictions, criteria have been clarified in state laws. Courts have traditionally sought expert opinion from forensic psychiatrists and psychologists to guide them in assessing fitness. This is completed through unstructured clinical interviews supported by cognitive testing. Such opinions are likely to be fraught with subjectivity, poor reliability and validity, and indefensible opinion (R v Miller [No 2], 2000 SASC 152). Faced with these concerns and criticisms, forensic specialists have looked at developing valid and reliable assessment tools to assess competence. In the United States, there are several competence tests available, each supported with varying amounts of empirical research – although these cannot be directly used in Australia (R v Stevens, 2010, SASCFC 1). The United Kingdom has seen some efforts to trial and use objective tools (Akinkunmi, 2002).
To some extent, Australia lags the world in the movement towards incorporating objective tools into the assessment of fitness to plead. Unlike other psychometric tools, differences between legal structures mean that competency tests cannot be used without significant modification. Other tools, such as the Wechsler Adult Intelligence Scale (WAIS III; Wechsler, 1997) and the Personality Assessment Inventory (PAI; Morey) have been used in Australia with minor if any changes, as there is an underlying assumption that our populations share sufficient similarities to be applicable to both populations. Tests for assessing competency cannot be so readily moved between jurisdictions, even within Australia. Even given the apparent similarities between the legal systems of the USA, UK and Australia, there are significant differences, and so it follows that extensive changes would be required to convert an English or American tool to meet Australian needs.
No tests of fitness to plead have been developed for, or are routinely used or accepted in Australian jurisdictions. The British face similar hurdles, though recently the MacCAT-CA has been adapted for the UK. This test, the MacCAT-FP, has shown good predictive properties in assessing that population. Since Australia shares a strong history with the UK, and as a whole has very similar legal proceedings, we would assume that the MacCAT-FP could be adapted for use in an Australian state or states. Judgments such as R v Stevens ([2010], SASCFC 1, highlight the necessity for a local test addressing relevant Australian common law precedents. In R v Stevens, psychologists were criticised for not addressing common law criteria, and their use of a test designed for the United States was rebuked as inappropriate.
This research will make a needed and unique contribution to the assessment of fitness to plead in Australia by converting the MacCAT-CA/-FP, an objective test of fitness for trial, for use in South Australia.The instrument will be converted from the MacCAT-CA/-FP to a South Australian version. It will betrialled on two groups of South Australian prisoners – those awaiting trial and referred for competency assessment, and a control group of those awaiting trial and assumed competent (remandees).
Context
The notion of fitness to plead(FtP) has been entrenched in British law since 1836, when the English case of Pritchard determined specific criteria to ascertain a defendant’s fitness to proceed to trial. The term FtP is primarily used in England and Wales and much of Australia, Competence to Stand Trial (CST) across much of the USA, and Fitness to Stand Trial (FST) in Canada; with the term Adjudicative Competence (AC) gaining popular usage in research(Mumley, Tillbrook, & Grisso, 2003).
The common law case of King v Pritchard (1836), hereinafter referred to as Pritchard, has been consistently upheld as the point of reference for determining FtP (Mackay, 2007). The Pritchard case requires that the defendant meet five criteria: A defendant needs to be able to plead to the charge; to understand the course of the proceedings; have the ability to instruct counsel; and the ability to understand the evidence. Like Australia and the USA, a defendant need only be found incompetent on one criterion to be unfit to stand trial.The UK model is, unlike most of Australia, based in common law rather than legislation.
The 1960 Dusky v. United States decision sets the minimum standard for competence in the USA, hereinafter referred to as Dusky. Dusky himself was charged with rape related crimes, and was also found to be suffering from a schizophrenic condition. The case was tried, Dusky convicted, and the charge upheld on appeal (Mossman, et al., 2007). However, the US Supreme court found that the courts needed to have considered “whether he [had] sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding – and whether he [had] a rational as well as factual understanding of the proceedings against him”(Dusky v. US, 1960, as cited by Mossman, et al., 2007, p. S5). The Dusky standard is far broader in scope than the UK and Australian models, which are each quite prescriptive with narrow criteria (Mullen, 2002a).In the USA competency to stand trial remains heavily based on the Dusky case in most states.
The criteria for FTP in Australia are based on the common law judgement of R. v. Presser (1958), which recognises that the accused needs to be able to play an active role in the proceedings for a fair trial to occur. The six facets of this involvement prescribe that a defendant must have the mental capacity to understand their charges, and be able to plead to them; they must be able to understand the nature of the charges; be able to instruct counsel and assist in formulating a defence; and must be able to give their version of the facts of the case. All Australian states place the final decision of competence with the court of law, which may take guidance from legal and psychiatric counsel to form a basis for a ruling; with the exception of Queensland, where the responsibility lies with the Mental Health Court (Mullen, Briggs, Dalton, & Burt, 2000; Scott, 2007). Although there are six Presser competencies, a defendant need only be found incompetent on one to be declared unfit to stand trial. Common law judgements since Presser include the requirement to consider both the Presser competencies and the length of the trial; specifically if the trial is to be long; it must be reasonably foreseeable that the defendant will remain fit for the duration of the trial (Kesavarajah v. R, 1994).
Table 1 compares the Presser criteria to each states legislation, and it can be seen that each have adopted the Presser criteria to some extent. NSW procedures follow common law, and so include all Presser criteria by default. The rates of those being found unfit to plead vary across the states and are difficult to quantify. The Queensland Mental Health Court, which has the narrowest fitness requirements, in the 2006/07 year found 99 referred cases fit for trial, and 26 unfit.
Table 1.
Comparison of Australian States Legislation Against the 1958 Presser Criteria
Presser Criteria / NT / ACT / TAS / SA / WA / VIC / NSW / QLD1. Needs to be able to understand what it is that he is charged with. / X / X / X / X / X / X / X
2. Needs to be able to plead to the charge, and to exercise his right of challenge. / X / X / X / X / X / X / X
3. He needs to understand generally the nature of the proceedings, namely, that it is an inquiry as to whether he did what he is charged with. / X / X / X / X / X / X / X / X
4. Needs to be able to follow the course of the proceedings so as to understand what is going on in Court in a general sense, though he need not, of course, understand all the formalities. / X / X / X / X / X / X / X
5. Needs to be able to understand the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel, he needs to be able to do this by letting his counsel know what his version of the facts is and, if necessary, telling the Court what it is. / X / X / X / X / X / X / X / X
6. He need not have the mental capacity to make an able defence: but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and his counsel, if any. / X / X / X / X / X
Note. The X signifies inclusion of this prong in state legislation.
Although the basic tenants of fitness are comparable and similar in many jurisdictions, there are fundamental differences between the major western countries. Within the Australian states and territories there are differences in the wording and application of regarding fitness to stand trial. With this variation in standards for competence across the world, there is an impact on the development of competency assessment instruments. These instruments must necessarily vary depending on the legal criteria utilised and the legal frame work of the country or state within which they operate. It is not reasonable to then assume that a competency assessment designed for use in one jurisdiction will be appropriate in another jurisdiction. It must be noted that competence and FtP are foremost legal definitions, and clinical tests when utilised, are an adjuvant to court processes.
Competency assessments have traditionally been unstructured clinical assessments. Such clinical assessments are notoriously subjective, with poor reliability (James, Duffield, Blizard, & Hamilton, 2001).The R v Miller (SASC 152, 2000) case is a clear example of the fallibility and indefensibility of clinical judgment in court. To expand, this case involved difference of opinion between four experts, who were involved in determining a defendant’s ability to adequately participate in his trial. Each specialist used different tools and methodologies to arrive at their opinion, and there was no consensus on the defendant’s fitness. The court eventually decided that the defendant could not understand the charges against him, and he was found mentally unfit to stand trial.
The more recent case of R v Stevens ([2010], SASCFC 1) again shows difficulties in translating psychological concepts into legal contexts. In this case, two forensic psychologists agreed that the defendant was unfit to stand trial. One psychologist was criticised by the judge for using a test of competence used in the United States, and the judge was particularly critical of both psychologist’s failure to specifically address the Presser criteria in their responses to the court. This defendant was found mentally fit to stand trial, and the psychologist’s opinions were largely discounted. The use of an Australian fitness instrument in this case would have assisted the psychologists to produce objective and defensible arguments regarding fitness, and assisted them to address the specific Presser criteria in responding.
The development and use of competency assessment toolshas been shown to improve reliability of these assessments (Mumley, et al., 2003) allowing these clinical decisions to become more objective and defendable. Its importance highlights the inadequacy of making such assessments with unstructured interview techniques, which have inadequate reliability and validity. Objective, valid and practical tools are essential if FtP is to e assessed accurately, reliably and fairly.
Competency Instruments
Across the UK, the USA, Canada and Australia, FtP has long been decided by clinical judgement, where psychiatrists and psychologists make an assessment of symptomology and attempt to relate this to relevant legal criterion (James, et al., 2001). As noted in James and colleagues, this may lead to poor competence decisions based on either an under- or over-estimation of symptomology, and it’s applicability to legal criteria. The subjectiveness of these clinically based competence assessments strongly indicates a need for the development of a method of objectively determining fitness, not to rule out clinical expertise, but to support, strengthen and complement clinically based decisions. Thus, competency instruments have been created to help move towards a more objective assessment of fitness.
Mankad, Brakel and Wilson (2002)questioned the clinical usefulness of competence instruments, and indicated specificprinciplesthey considered essential before use in a forensic psychiatry context. Firstly, they suggested there should be both economic and clinical benefits to using such tests, as the use of assessment instruments needs to add value to clinical judgement alone.That is, the tests should make existing processes more efficient and more robust, otherwise they risk adding expense, time and effort, without positively adding to the process(Mankad, et al.). Mankad and colleagues advocated the use of simple high quality assessment instruments to reduce the time and cost of competency assessments.The implementation of competency screening instruments as an early identification procedure will result in a streamlined forensic psychiatric process, hopefully resulting in a flow-on effect of contributing to the fairness of judicial proceedings(Mankad, et al.). However, Mankad and colleagues warn that inaccurate screening tests, producing excess numbers of false positives, could inadvertently increase the need for comprehensive psychiatric evaluations, increasing costs and slowing the judicial process. Although Mankad and colleagues take a negative overall view of competence tests, it is still clear that they advocate the appropriate and informed use of such tests. The cautious and educated use of competence tests can clearly add value to the legal process, whereas ill-informed application can have unforeseen and unwanted consequences.