Juvenile Fitness for Trial: Psychiatrists, Psychologists and Lawyers (O)Watt, B. D., O’Leary, J., & O’Toole, S. CRICOS CODE 00017B

Our research objective To 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/ / / / / TOTAL 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.

Measure Interview 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

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: Bruce Watt: Jodie O’Leary: