Towards Objectifying Mentally Unfit for Trial in South Australia: Creation of the MacCAT-Au(SA)

Thesis Confirmation Seminarfor 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?

What is Fitness to Plead?“Mental Fitness to Stand Trial” in SASection 269h of Criminal Code.

Validity of conviction if unable to prepare & present case adequatelyProtects defendants rights

Right to confront accuser, etc.

Historical Background

Pritchard, UK

Dusky, USA

Presser, Victoria, 1958

Presser Criteria NT ACT TAS SA WA VIC NSW QLDNeeds to be able to understand what it is that he is charged with. X X X X X X XNeeds to be able to plead to the charge, and to exercise his right of challenge. X X X X X X XHe 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

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

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

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

Psychological Ax of Fitness

Court decisionInfluenced by opinion from experts

Clinical opinionFormed through:

Clinical interviewsCognitive testing

Often fails because:

Difficulty differentiating between psychological characteristics and legal requirementsDifferent experts have different opinions – fallibility of clinical opinionNo 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 processesBring objectivity and defensibility to psychological opinions for the courtLarge body of international research re Competency ToolsMust be both economical and clinical benefits

This Study

Conversion of existing tool for use in South AustraliaPreliminary trial of converted toolFirst known attempt to create Australian toolTo be validated and trialled with remandees and defendants awaiting trial.

MacCAT-CA / -FP

A 22 question vignetteUnderstanding, Reasoning, AppreciationObjective testTested in USA – 729 defendantsReliabilityValidity25 – 55 minutes administration time3rd 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 UnderstandingItems 1 thru 8 assess capacity for factual understanding of legal system and process of adjudication.

Roles of defence & prosecutorElements of offenceElements of lesser included offenceRole of juryRole of judge at trialConsequences of convictionPleading guiltyRights 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 ReasoningItems 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-defenceMitigating prosecutions evidence of intentPossible provocationFear as motivator for behaviourPossible mitigating effects of intoxicationSeeking informationWeighing consequencesMaking 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 AppreciationAssesses defendants capacity to appreciate own situation. Items 17 thru 22 elicit fundamental beliefs about six important adjudication issues.

Likelihood of:being treated fairlybeing assisted by defence counselfully disclosing case information to attorneybeing found guiltypunishment if convictedpleading 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 designationsReviewed by experienced practitioners & barristers

MacCAT-Au (SA)

Consider both existing -CA & -FP Change language to “Australian”Change offences to South Australian

Aggravated Cause Serious HarmAggravated Assault Causing Harm

New Scoring RubricFit with South Australian leg. & Presser

Methodology: Sample

Specialised small population2 Groups – Referred and ControlReferred Group – via Chief Justice

Referred by Courts for fitness axSmall opportunity sample – approx 15 - 20

Control Group – via DCSRemandees awaiting trialApproximately 40.

Measures

Demographic & Justice System ExperienceMMSEBPRSWASI + WAIS III ComprehensionMacCAT-Au(SA)

Procedure

All participants same batteryCheck for previous WASI / WAIS

Locations vary – participant dependantExpert opinions collected after Ax for comparison

Outcomes

Expert FITMacCAT FIT

Expert FitMacCAT UNFIT

Expert UNFITMacCAT FIT

Expert UNFITMacCAT FIT

Delimitations

Preliminary testing onlyNot immediately generalisable to other statesNot produce a clinically useful tool

Hopefully one suitable for larger studies

Budget

Item Qty List Price Discount Total

WASI 1 $ 718.70 40% $ 430

WASI Record Forms 1 $ 162.10 40% $ 100

Transport Expenses       $ 500

Room Hire       $ 500

Total       $ 1530

Proposed TimelineLiterature Review

MacCAT-Au(SA) Creation

MacCAT-Au(SA) Validation

Ethics Approval - JCU

Ethics Approval - DCS

Chief Justice Approval

Write-up Case Analysis

Referred Data Collection

Control Data Collection

MacCAT-Au(SA) Data Collation

Write-up Trial

Overall Discussion

Final Report Collation

May 10 Aug 10 Nov 10 Feb 11 Jun 11 Sep 11 Dec 11

Towards Objectifying Mentally Unfit for Trial in South Australia: Creation of the MacCAT-Au(SA)

Thesis Confirmation Seminarfor the

Doctorate of Psychology (Clinical and Forensic)

Supervised by Dr’s Moston, Golus & Prof. Helmes

Sam van der Wijngaart James Cook University