Towards Objectifying Mentally Unfit for Trial in South Australia: Creation of the MacCAT-Au(SA) Thesis Confirmation Seminar for the Doctorate of Psychology (Clinical and Forensic) Supervised by Dr’s Moston, Golus & Prof. Helmes Sam van der Wijngaart James Cook University

What is Fitness to Plead? “Mental Fitness to Stand Trial” in SA Section 269h of Criminal Code. Validity of conviction if unable to prepare & present case adequately Protects defendants rights Right to confront accuser, etc.

Historical Background Pritchard, UK Dusky, USA Presser, Victoria, 1958

Comparing Australian States Presser Criteria NTACTTASSAWAVICNSWQLD Needs to be able to understand what it is that he is charged with. XXXXXXX Needs to be able to plead to the charge, and to exercise his right of challenge. XXXXXXX 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. XXXXXXXX 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. XXXXXXX 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. XXXXXXXX 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. XXXXX

Psychological Ax of Fitness Court decision Influenced by opinion from experts Clinical opinion Formed through: Clinical interviews Cognitive testing

Often fails because: Difficulty differentiating between psychological characteristics and legal requirements Different experts have different opinions – fallibility of clinical opinion No objective psycholegal measures in Australia

R v Stevens [2010] SASCFC 1 “…psychologists had failed to address the correct questions. They have both regarded the appellant as unfit to plead because he failed a number of tests which demonstrated that he had significantly reduced cognitive functions. They did not consider in specific terms whether the appellant understood what it is with which he had been charged and whether he was able to give specific instructions about the allegations…”

Competency Ax Tools “Tool” not a “Test” Support, not replace clinical processes Bring objectivity and defensibility to psychological opinions for the court Large body of international research re Competency Tools Must be both economical and clinical benefits

This Study Conversion of existing tool for use in South Australia Preliminary trial of converted tool First known attempt to create Australian tool To be validated and trialled with remandees and defendants awaiting trial.

MacCAT-CA / -FP A 22 question vignette Understanding, Reasoning, Appreciation Objective test Tested in USA – 729 defendants Reliability Validity 25 – 55 minutes administration time 3 rd generation competency test

Vignette I’m going to read you a brief story. Then, based on that story, I’m going to ask you some questions about how the legal system works “Two men, Fred and Reggie, are playing pool at a bar and get into a fight. Fred hits Reggie very hard with a pool stick. Reggie falls and hits his head on the floor so hard that he nearly dies”

Ax of Understanding Items 1 thru 8 assess capacity for factual understanding of legal system and process of adjudication. Roles of defence & prosecutor Elements of offence Elements of lesser included offence Role of jury Role of judge at trial Consequences of conviction Pleading guilty Rights waived in guilty plea

Example Item “Let’s say that Fred’s case goes to court for a jury trial. What are some of the jobs of the jury?”

Ax of Reasoning Items 9 thru 13 assess ability to distinguish more relevant info from less relevant. Items 14 thru 16 assess ability to reason about pleading guilty/not guilty. Self-defence Mitigating prosecutions evidence of intent Possible provocation Fear as motivator for behaviour Possible mitigating effects of intoxication Seeking information Weighing consequences Making comparisons

Example Item Fact #1 : After Reggie pushed him, Fred thought the saw Reggie reaching for a knife. Fact #2 : Before going to the bar, Fred picked up a paycheck at work and took his girlfriend, Julie, to a baseball game. If Fred’s lawyer asks Fred about his reason for fighting with Reggie and for hitting him with a pool stick, which of these two facts would be more important to tell his lawyer?

Ax of Appreciation Assesses defendants capacity to appreciate own situation. Items 17 thru 22 elicit fundamental beliefs about six important adjudication issues. Likelihood of: being treated fairly being assisted by defence counsel fully disclosing case information to attorney being found guilty punishment if convicted pleading guilty

Example Item Compared to other people who are charged with the same offence as you are, do you think you are more likely, less likely, or just as likely to be found guilty? What are your reasons for thinking that?

MacCAT-FP – Akinkumni (2002) Changed items. Eg. Omitting references to juries being involved in sentencing Changed some language to “English” Adjusting offence designations Reviewed by experienced practitioners & barristers

MacCAT-Au (SA) Consider both existing -CA & -FP Change language to “Australian” Change offences to South Australian Aggravated Cause Serious Harm Aggravated Assault Causing Harm New Scoring Rubric Fit with South Australian leg. & Presser

Methodology: Sample Specialised small population 2 Groups – Referred and Control Referred Group – via Chief Justice Referred by Courts for fitness ax Small opportunity sample – approx Control Group – via DCS Remandees awaiting trial Approximately 40.

Measures Demographic & Justice System Experience MMSE BPRS WASI + WAIS III Comprehension MacCAT-Au(SA)

Procedure All participants same battery Check for previous WASI / WAIS Locations vary – participant dependant Expert opinions collected after Ax for comparison

Outcomes Expert FIT MacCAT FIT Expert Fit MacCAT UNFIT Expert UNFIT MacCAT FIT Expert UNFIT MacCAT FIT

Delimitations Preliminary testing only Not immediately generalisable to other states Not produce a clinically useful tool Hopefully one suitable for larger studies

Budget ItemQtyList PriceDiscount Total WASI1$ %$ 430 WASI Record Forms1$ %$ 100 Transport Expenses $ 500 Room Hire $ 500 Total $ 1530

Proposed Timeline

Towards Objectifying Mentally Unfit for Trial in South Australia: Creation of the MacCAT-Au(SA) Thesis Confirmation Seminar for the Doctorate of Psychology (Clinical and Forensic) Supervised by Dr’s Moston, Golus & Prof. Helmes Sam van der Wijngaart James Cook University