Practical options to address the problem of people with cognitive impairments being found “unfit to plead” and subjected to indefinite detention in Australia.
The Unfitness to Plead Project aims to develop practical and legal options to address the problem of people with cognitive impairments being found “unfit to plead” and subject to indefinite detention in Australia. The second aim is develop supports so that people with cognitive disabilities can participate on an equal basis with others in criminal proceedings brought against them.
Accessing justice on an equal basis with others is a major issue for many people with disabilities. People with intellectual, cognitive and mental health-related disabilities are at a particular disadvantage. Across Australia, this group is over-represented at all stages of the criminal justice system.
One area of criminal law which creates particular disadvantage is ‘unfitness to stand trial’ laws. In all states and territories, a defendant can be found ‘unfit to stand trial’. This legal process is partly designed to protect vulnerable defendants from miscarriages of justice — for example, where they cannot understand the case against them or follow court proceedings. The problem is that these processes can perpetuate and entrench injustice.
After a court finds an accused unfit to stand trial, the best case scenario is release into the community, most likely under the supervision of disability services. The worst-case scenario is incarceration in prison or an institution. And it can be incarceration with no end in sight — potentially for far longer than if the accused had been convicted and sentenced for the alleged crime.
Unfitness proceedings can violate a range of rights, including the right to a fair trial, the right to equal recognition before the law, and the right to be free from cruel and unusual punishment.
One of the worst cases of injustice concerned Marlon Noble, an Aboriginal man who was imprisoned for over 10 years without conviction in Western Australia. Noble has now been released into the community but remains under indefinite supervision, and is subject to severe restrictions on his freedom. The UN Committee on the Rights of Persons with Disabilities found that Mr Noble had a number of his rights violated, including the right to access justice, to equality before the law, and to freedom from cruel, inhuman and degrading treatment.
The program was developed by leading academics in the field with active input from people with cognitive impairments, including Indigenous people, and their representative organisations, as well as professionals in law and psychology. The organisations included First Peoples Disabilities Network, People with Disabilities Australia, and the Criminal Lawyers Association of the Northern Territory.
- Analyse the social, legal and policy issues leading to unfitness to plead findings and indefinite detention in Australia, with a strong focus on the experiences of Indigenous people
- Provide and evaluate practical support for up to 60 individuals with cognitive impairments who have been charged with a crime and who may be subject to unfitness to plead processes
- Recommend options for the reform of unfitness to plead law and policy
The expected outcomes are the:
- Analysis of the differences and similarities in unfitness to plead laws and policy across the Australian states and territories
- Development and evaluation of a practice model in supported decision-making in the criminal justice context that can be used in Australia and abroad
- Creation of recommendations for law and policy reform in compliance with human rights standards.
The project is funded as part of the Australian Government Department of Social Services, National Disability Research and Development Research Scheme.
Principal Chief Investigator
Melbourne Social Equity Institute
Disability Research Initiative
Indigenous Health Equity Unit
Professor of Criminology
University of NSW
Postdoctoral Research Fellow
Melbourne Social Equity Institute
Research assistance for the project has been provided by Dr Ruth McCausland, Mr Louis Andrews and Ms Sarah Mercer.
National Advisory Panel
The National Advisory Panel is an important part of the project. The Panel includes representatives of disabled peoples and Indigenous-led organisations, including mental health consumers and self-advocates with intellectual disabilities. Representatives from a number of professions, including in law, psychology and social science, also serve on the panel. The panellists are:
- Miranda Bain, Strategic Adviser, Director Strategy, Government and Community Relations, Funds in Court, Supreme Court of Victoria
- Guillaume Bailin, Deputy Managing Lawyer, Indictable Crime, Criminal Law Services, Victorian Legal Aid
- Jody Barney, Deaf Indigenous Community Consultant
- Wanda Bennetts, Senior Consumer Consultant, Independent Mental Health Advocates (Victoria)
- Dr John Chesterman, Manager Policy and Research, Victorian Office of the Public Advocate
- Lenny Clarke, First Nations Disability Network member & Koori Court representative;
- Ben Fogarty, Barrister, Denman Chambers (disability discrimination law expert)
- Susan Arthur, Reinforce (Reinforce isAustralia’s oldest and longest-running self-advocacy groups for people with intellectual disability)
- Russell Goldflam, President, Criminal Lawyers Association of the Northern Territory
- Rosemary Kayess, Legal Academic, UNSW & People with Disabilities Australia
- Dr Chris Lennings, Forensic Psychologist, Lennings Seidler Collins clinical and forensic psychology services (NSW)
- Elizabeth McEntyre, A PhD candidate who has worked with Eileen Baldry (Senior Researcher) (UNSW) and Patrick McGee, with expertise on Indigenous women in the criminal justice system (NSW);
- Patrick McGee, Aboriginal Disability Justice Campaign manager; Researcher, LaTrobe University.
The Unfitness to Plead summary report was launched on Thursday 7 September by Michael Black AC QC, former Chief Justice of the Federal Court of Australia, with special guest, Mr Marlon Noble.
The final report of the Senate Community Affairs References Committee inquiry on the indefinite detention of people with cognitive and psychiatric impairment in Australia has now been published. The report draws from the work of the Unfitness to Plead Project in numerous places. The research team is hopefully that the recommendations will be taken up by state and territory governments.
The pilot phase of the research project has now concluded. The researchers will now collect and analyse the interview and research material to make recommendations about effective support for accused persons with disabilities.
The project included a 6-month support program – which is now complete – in which disability support workers were co-located at three legal services: the North Australian Justice Agency (NT), the Victorian Aboriginal Legal Service (Vic) and the Intellectual Disability Rights Service (NSW). The support worker’s role was to assist clients who have intellectual, cognitive or mental health disabilities.
The program was developed by the research team, with active input from people with cognitive impairments, including Indigenous people, and their representative organisations, as well as professionals in law and psychology. The organisations included First Peoples Disabilities Network, People with Disabilities Australia, and the Criminal Lawyers Association of the Northern Territory.
In the initial evaluation, the model was widely endorsed by lawyers, supporters and clients. The work was generally seen to fulfil a major gap in legal support for persons with cognitive and mental health disabilities, who make up a significant portion of legal aid clients. Initial findings suggest:
- The model helps ‘optimise’ accused persons’ fitness to stand trial, hence avoiding adverse outcomes, such as indefinite detention, or an unsatisfactory lack of conviction and sentencing. The lack of conviction and sentencing may also adversely affect victims and victims’ families.
- The model is cost-effective, with preliminary costings analysis suggesting significant cost-savings, including by: preventing court delays; elevating proceedings to higher courts, which can make unfitness determinations; reducing the need for neuro-psych assessments,.
- The model may help reduce reoffending by improving social inclusion, engagement with community-based support services, and ensuring health, disability and welfare services are accountable to marginalised individuals.
- The model moves Australia closer to compliance with the United Nations Convention on the Rights of Persons with Disabilities
Excerpts from Interviews with Participating Lawyers
For [lawyers] the big issue we face first is the client, if - well (1) we've got an ethical duty that if we believe that they're not fit to give us instructions or not fit to stand a trial we've got an ethical obligation to pursue that. However my view and I would say - I wouldn't speak for everyone but it's a fairly commonly held view that - particularly in the case of fitness and mental impairment - is that we should be avoiding that if we can because the sentencing regime for clients that fall under that is actually - can be more onerous. They can end up on Lifetime Supervision Orders or Indefinite Supervision Orders. If they're Custodial Supervision Orders - whereas if the matter was to resolve at a plea they might get a sentence that is far more onerous on them.
– Lawyer, Victoria
[The program] has been a massive bonus. [Previously] […] I didn't have the support of a worker who could perhaps help me through getting instructions, or what to - or even to identify in a brief what might be a flag for someone suffering from a cognitive disability.
[The support worker] […] has been able to help me (1) better manage that client, in the sense of how to get instructions. Taking time, recognising moments when it might be good just to take a break, or even framing the advice or how I get the advice without using too much jargon. Even just teasing out the client's history that might give me some insight into other issues that - as opposed to just getting background instructions.
So yeah, it's actually been extremely beneficial, especially because this client who we are currently working with at the moment, his matters are still on foot and have been for - I had him probably a good - maybe 12 months before [the supporter] came on board. The difference in how I manage him now with how I managed him before, it's quite profound actually. It has been of great benefit.
– Lawyer, New South Wales
I think it's great to clients just having - because most of our clients do [have a disability] - and there's people who are in the court system I guess are suffering from multiple sources of disadvantage, so - and in particular - I mean, court is stressful, there's often language barriers, there's cognitive issues. Often there's lots of different stressors on a particular person so I think somebody - having somebody like [the supporter], who has the time to help somebody in court, deal with court, is really invaluable because our clients, as I said, suffer from so many different layers of disadvantage and don't have the normal resilience. Often don't have, I guess, the normal level of resilience that somebody from a different privileged background would have. I think [the Supporter’s] role would be invaluable.
– Lawyer, Northern Territory
I think the benefit [of having a disability support worker] is as an organisation, having – because [disability] has been an area of development I've really been keen on, having a discrete unit because in a youth unit where you have social workers and we have case workers and stuff like that, because it's just recognising going beyond the legal needs. Equally, that's why you need to start thinking about that for mental health as well. I think it just brings that extra resources but it also, I think fundamentally, with Aboriginal Legal Aid, we think more beyond the case, so we also look into that social welfare aspect of it as well.
– Senior Lawyer, Northern Territory
Examples of the Support Being Provided, and the Potential Benefits
A Community Legal Centre interviewee detailed the following case to researchers:
We’ve got [one case] where the issue was somebody hitting a staff member in a group home. That particular person should – you know they should get active and say, ‘maybe she’s got a thing about that particular staff member’, ‘how can we avoid this happening’? That doesn’t happen. In a way they were very happy to get rid of her. So that particular person was in a country area. She couldn’t go back to the home after breaching an assault charge. So she ended up in prison for two months. She was an Aboriginal woman, grew up in out of home care, she was in jail for two months, back to court, still no option for her, back to prison for another two months in between hearings. Eventually they got her somewhere, but by this time she had spent four months in prison. So somebody’s got to be watching.
And, I don’t know whether the solicitors feel powerless as well but… we find we can achieve a lot just because we’re persistent. I think if you’re there beside the person and you see yourself as their support, then that’s the sort of thing you’ll do. People in other roles, you know in their little silos, and they don’t really take up on what’s actually happening to the person and how wrong it is.
In contrast to the case above, consider the following case of a client support worker assisting a person in a very similar situation. A client was charged with assaulting a staff member of a group home that she lived in. Lawyers were seeking ways to challenge the case. The client supporter worker suggested that they should read staff protocol for that particular service provider. The supporter identified that the staff member had not followed staff protocol, which the supporter was easily able to locate and compare against the charge sheet. This was something the CLC lawyer admitted never having thought to do. As a result, the charges were dropped, and no hearing was required. The group home reportedly re-trained staff on the service’s staff protocol. This is an example of the way the support workers keeps disability services, and other social services, accountable.
“TJ” is a young man who has an intellectual disability, and significant daily support needs. He lived in a group home, and had become interested with a neighbour who paid him attention initially, but at some point decided that she didn’t want to spend time with him. TJ did not understand that and kept pursuing attention from her. Eventually she sought an Apprehended Violence Order (‘AVO’) against him. This is not uncommon. TJ had no idea of the meaning of an AVO, which would have been explained to him if he had a support person. Somehow the service wasn’t able to keep him away from the neighbour. He did something minor to breach the order; he threw an empty drink can at her.
The magistrate was concerned that because the man lived so close to his neighbour it would be inappropriate to grant bail so TJ was placed in remand. 3 months later the man’s guardian sought out a disability-specific legal service because she was concerned that his condition was deteriorating. His initial community legal centre – which was a state-based legal aid service – had not pursued a further bail application. The solicitors visited him in remand and followed up with the government department who ran his group home. The department agreed to find another group home and a week later, a bail application was successful.
According to one lawyer we interviewed:
Had we had a support person there through all of that I really don’t think that could have happened. Because if you’re there and it’s all happening, you just get the “guts” of what an unfair, wrong thing this is to happen. So a support person can do things like chase legal aid to make another bail application, talk to the group home staff about whether there’s anything that can be done that would satisfy the court that he is not going to get into trouble with his neighbour. It just astounds me that that could happen to someone when they’re surrounded by government group home workers, and they have legal aid, and a person with really significant needs arising from their disability ends up in prison for three months for throwing a can at someone and breaching an [Apprehended Violence Order]!And the other thing I think that’s really important is that often people in a disability job think well the courts and justice system looks after justice so they’re not an assertive or an active participant, they just think they can just — ‘it’ll look after itself because that’s the justice system’, and that’s so far from the truth.
The full evaluation is due September 2017. Please contact the researchers for more information.
The Unfitness to Plead Summary Report, as well as an Easy Read version, Aboriginal and Torres Strait Islander Legal Services Brochure and the Cost Benefit Analysis, are now available.
Unfit to Plead, Meanjin, Autumn 2018
Unfitness to plead law and the fallacy of a fair trial, OUP Blog, Monday 11 December 2017
Gross miscarriage of justice': unfit to plead but still locked up, The Age, Tuesday 12 September 2017
Cognitively impaired man jailed for ten years without trial calls for reforms, SBS Online, Tuesday 12 September 2017
Launch of the Unfitness to Plead Report, NITV Radio, 11 September 2017
An outdated law that continues to impact on Aboriginal and Torres Strait Islanders with disabilities more than any other group in Australia is again under the spotlight, CAAMA Radio, 11 September 2017
Unfit to plead: Imprisoned without conviction, Pursuit, 7 September 2017
Suspects with cognitive impairment advised by inmates to plead guilty, inquiry hears, The Guardian, 25 October 2016
Preventing disability-based disadvantage and discrimination in the criminal justice system, The Pulse 94.7, Tuesday 5 April 2016
Disability-based disadvantage – a life sentence?, Pursuit, 4 April 2016
What Making a Murderer tells us about disability and disadvantage in criminal law, The Conversation, 9 February 2016
Submissions and Policy Documents
Submission to Senate Community Affairs References Committee inquiry on the indefinite detention of people with cognitive and psychiatric impairment in Australia, 21 March 2016. (See also the transcript of evidence provided by Dr Anna Arstein-Kerslake for the Committee's hearing in Melbourne on Friday 29 April 2016).
Read the full report of the Senate Committee Inquiry which draws from the work of the Unfitness to Plead Project in a number of places.
A Arstein-Kerslake, P Gooding, L Andrews, and B McSherry, ‘Human Rights and Unfitness to Plead: The Demands of the Convention on the Rights of Persons with Disabilities’ (2017) Human Rights Law Review.
Unfitness to plead regimes may lead to the indefinite detention of people with cognitive disability in prisons and other secure facilities. This raises significant concerns with human rights breaches, including the rights to legal capacity, a fair trial, and liberty. This article provides a critical analysis of unfitness to plead regimes in common law and civil law countries in the light of key rights set out in the United Nations Convention of the Rights of Persons with Disabilities. It then examines how unfitness to plead regimes might be reformed to ensure that the rights of persons with disabilities are protected.
P Gooding, A Arstein-Kerslake, L Andrews and B McSherry, ‘Unfitness to Stand Trial and the Indefinite Detention of People with Cognitive Disability in Australia: Human Rights Challenges and Proposals for Change’ (2017) Melbourne University Law Review.
Adverse consequences facing accused persons found unfit to stand trial in Australia have been well publicised in recent years. Those found unfit may face indefinite detention in prison or other secure settings; potentially for longer than if they had been convicted and sentenced. Indigenous people with cognitive disabilities appear to face particular disadvantage in this area of criminal law. Reform initiatives have brought attention to the issue, as has the coming into force of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). Under the UNCRPD, unfitness to stand trial laws may currently violate the rights of persons with disabilities to equal recognition before the law, access to justice, and liberty and security of the person. The call for equal recognition of legal capacity and the right to support to exercise legal capacity on an equal basis with others, has raised particular concerns. This paper will consider the demands of the UNCRPD on unfitness to stand trial laws in Australia in the broader context of disadvantage facing persons with cognitive disabilities in criminal law.
P Gooding, S Mercer, E Baldry and A Arstein-Kerslake, ‘Unfitness to Stand Trial: The Indefinite Detention of Persons with Cognitive Disabilities in Australia and the United Nations Convention on the Rights of Persons with Disabilities’ (2016) 10 Courts of Conscience 6.
Unfitness to stand trial laws in Australia potentially help accused persons with cognitive disabilities avoid unfair trials – in particular by avoiding proceedings in which they cannot participate. Yet such laws can create a separate and lesser form of justice that undermines due process rights and substantive equality. Moreover, unlike those tried and convicted, persons deemed unfit to stand trial may be indefinitely detained, potentially for longer than would follow a conviction and sentence for the original charge. Unequal treatment of this kind appears to violate fundamental rights enshrined in both international and domestic law; namely, rights to equal recognition before the law, access to justice, and liberty and security of the person. This paper briefly outlines these issues with particular consideration of Australia’s obligations under the United Nations Convention on the Rights of Persons with Disabilities. It outlines a program of formal support being developed for accused persons with cognitive disabilities in three Australian jurisdictions by researchers at the University of Melbourne and the University of New South Wales.
P Gooding, A Arstein-Kerslake, S Mercer and B McSherry, ‘Supporting Accused Persons with Cognitive Disabilities to Participate in Criminal Proceedings In Australia – Avoiding the Pitfalls of Unfitness to Stand Trial Laws’ (2017, forthcoming) Law in Context.
Excerpt: This article will focus on one quite practical step in the effort to achieve equal procedural rights and substantive equality for persons with disabilities in the criminal justice system. We will consider the support that can help optimise the fitness to stand trial of accused persons with intellectual, cognitive, and psychosocial (mental health) disabilities. We will refer to this group in shorthand as ‘persons with cognitive disabilities’. Although we will focus primarily on persons with cognitive disabilities, the issues will also be relevant to others, including people with complex communication needs. The paper will cover the legal basis for providing support, with reference to Australian law and the CRPD, and the types of support currently being provided in Australia. The article will focus on the support needs of those who are ‘borderline’ fit/unfit, rather than those who, under current legal definitions, are manifestly unfit to stand trial. This article will consider the types of support that can help optimise a person’s fitness to stand trial under current laws, and consider them in relation to Australia’s obligations under the CRPD.
R McCausland and E Baldry, ‘“I feel like I failed him by ringing the police”: Criminalising disability in Australia’, Punishment and Society.
The stigmatisation, control, criminalisation and incarceration of people with disability have a long history. While in recent decades there has been increasing commitment to the rights of people with disabilities by governments in western nations, the over-representation of people with mental and cognitive disability in criminal justice systems has continued. Although there are similarities amongst Western jurisdictions in regard to the treatment of people with disability in justice systems, there are particularities in Australia that will be drawn out in this article. We argue that disadvantaged people with mental and cognitive disability are being managed by and entrenched in criminal justice systems across Australia’s six states and two territories, including so-called diversionary and therapeutic measures that appear to accommodate their disability. In the absence of early and appropriate diagnosis, intervention and support in the community, some disadvantaged and poor persons with mental and cognitive disability, in particular Indigenous Australians, are being systematically criminalised. Criminal justice agencies and especially youth and adult prisons have become normalised as places of disability management and control. Drawing on research that focuses in detail on the jurisdictions of the Northern Territory and New South Wales, we argue for a reconstruction of the understanding of and response to people with these disabilities in the criminal justice system.
For information about this project please contact:
Dr Piers Gooding
Postdoctoral Research Fellow, Melbourne Social Equity Institute
+61 3 8344 0910