Assessing fitness for trial in a Children’s Court

Abstract

In 2016, Queensland introduced changes to mental health legislation, providing additional powers to Magistrates in relation to soundness of mind and fitness for trial. This article explores the application of fitness for trial to young people in the Magistrate’s Court. It begins with a discussion of fitness for trial broadly, exploring issues with the current legal test, and discusses the unique application of the test in Queensland. By highlighting the inherent vulnerabilities of young people involved in the legal system, we identify the gaps and challenges of assessing fitness for trial with this population. In conclusion we recommend further exploration of alternative models for resolving questions of fitness for trial for young people involved in the criminal justice system.

The Mental Health Act 2016 (Qld) (herein referred to as the Act) commenced in Queensland in March 2017 to replace the previous Mental Health Act 2000 (Qld). One new aspect of the legislation is the provision of power for Magistrates to dismiss a complaint if the court is satisfied that the person charged with a non-indictable offence appears to have been unsound of mind at the time of an alleged offence or is unfit for trial. Similar changes have been recommended in the UK following a review of fitness for trial by the Law Commission (2016); however, changes have not been implemented in that jurisdiction.

The changes to the Queensland legislation resulted in the expansion of several child, youth and adult mental health court services in order to provide advice and reports to the Magistrate’s Court to support the decision-making powers available to them under the Act. In this article, we explore the application of fitness for trial to young people in the Magistrate’s Court. We start with a discussion of fitness for trial broadly, explore issues with the current legal test and discuss the unique application of the test in Queensland. Following this, we explore the inherent vulnerabilities of young people involved in the legal system and discuss the challenges of assessing fitness for trial with this population. We conclude with a discussion of alternative models for resolving questions of fitness for trial for young people involved in the criminal justice system.

Fitness for trial legislation and case law

In a broad sense, fitness for trial refers to an individual’s capacity to comprehend and participate fairly in legal proceedings, although there are variations in how this concept is defined and assessed across jurisdictions. The United Kingdom assessment is based on the criteria articulated in R v Pritchard (1836) that highlighted that an individual must have the ability to plead, understand evidence, understand court proceedings and know a juror can be challenged. These criteria were expanded by R v Davies (1853) to include the ability to instruct counsel. While the early cases pertained to defendants with sensory impairments, Judge Baron Alderson specifically stipulated that ‘it is not enough that he may have a general capacity of communicating’ (R v Pritchard, 1836, p. 304). In New Zealand the fitness to plead provision is codified and stipulates a person is ‘under a disability’ if the extent of their mental disorder precludes them from being able (a) to plead, (b) to understand the nature or purpose of the proceedings, or (c) to communicate adequately with counsel [Criminal Justice Act (NZ), 1985, s 108]. While not a common law country, there is a wealth of research based on the United States version of fitness for trial (Roesch et al., 1999; Rogers et al., 2004; Zapf et al., 2005), which is known as ‘competency to stand trial’. The Supreme Court ruling in Dusky v United States (1960) stated that the test is whether the defendant has a ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational, as well as factual, understanding of the proceedings against him’ (p. 402), with a version of this ruling having been enacted by all states in legislation.

In Australia, there is a presumption of fitness to stand trial at common law (R v Turton, 1854). Historically there were disputes over whether it was the defendant or the prosecution who bore the onus of proof for fitness or (unfitness) to plead (Dean, 1960). In R v Turton (1854) the defendant was presumed to be sane and fit to plead, and it was established that the defence bore the onus of proof to demonstrate unfitness. In R v Sharp (1858) it was stated that although the defendant was presumed to be fit to plead, if doubts were raised by the defence then there was an onus on the prosecution to prove the defendant was fit for trial. It was finally established under the common law that the defence must raise the issue of fitness and establish on the balance of probabilities that the defendant is unfit to stand trial (R v Podola, 1960). If the issue is raised by the Prosecution, and it is contested by the defence, it must be proved by Prosecution beyond reasonable doubt (R v Robertson, 1968, p. 694). Given this, fitness for trial is typically identified and raised by defence.

In the leading Australian case R v Presser (1958), the Victorian Supreme Court set out six relevant factors to the legal test. Now known as the Presser criteria, a person is fit for trial if they have (a) an understanding of the nature of the charges; (b) an understanding of the nature of the court proceedings; (c) the ability to challenge jurors; (d) the ability to understand the evidence; (e) the ability to decide what defence to offer; and (f) the ability to explain his or her version of the facts to counsel. If any one of these criteria are not met, then the person is deemed unfit for trial. Fitness may also alter during the trial depending on what is required at the time. In the case of Kesavarajah v The Queen (1994), the High Court held that the Presser criteria and the length of the trial were both relevant to fitness determinations. Therefore, the test may arise as an issue before or during the trial. When a defendant presents for trial, it may become apparent that they are unfit to plead. Alternatively, the defendant may enter a plea, and thereafter it may appear that they are unfit to be tried or sentenced. Furthermore, fitness for trial may change over time. In R v Wilson (1997) the accused was initially found unfit for trial because they had been suffering from ‘manic depression’ but following treatment the accused was found fit 10 months later. Additionally, there must be sufficient flexibility and practicality when determining fitness for trial, taking into account unique and potential consequences for the accused with regards to the particular proceedings in which the person is charged (Scott, 2007). For example, it would not be appropriate to use less onerous criteria in complex proceedings. Likewise, it would not be appropriate to use more elaborate and sophisticated criteria for an accused in a simple uncomplicated trial (Freckelton, 1995, 1996).

The Mental Health Act 2016 (Qld) does not define the criteria for assessing fitness; however the Presser Criteria mean that a fitness assessment typically includes consideration of both mental health disorders and intellectual capacity. It is widely recognised that individuals with cognitive impairments, including those with mental disorders, acquired brain injuries, foetal alcohol spectrum disorder, dementia and a range of developmental intellectual disabilities, are over-represented in the criminal justice system (Jeanneret et al., 2019). While these deficits and disabilities are prevalent in populations who engage in offending behaviours, they may also limit a person’s capacity to participate in justice processes (White et al., 2014), particularly where they impair their capacity to understand, comprehend and assist counsel. Therefore, accurate and valid assessments of fitness for trial are imperative to protect vulnerable populations from criminalisation due to their limited capacity to mount a defence at trial.

Where a defendant is found unfit for trial, the matter is dealt with differently across jurisdictions. In the UK, New Zealand and all Australian jurisdictions, with the exception of Queensland and Western Australia, defendants found unfit will undergo a special hearing to determine whether they committed the act [Criminal Procedure (Insanity) Act 1964 (UK); Mental Health (Forensic Provisions) Act 1990 (NSW); Crimes Act 1914 (Cth), Crimes Act 1990 (ACT), Criminal Code 1983 (NT) Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), Criminal Law Consolidation Act 1935 (SA), Criminal Procedure (Mentally Impaired Persons) Act 2003 (NZ)]. A common element in these hearings is the role of the legal representative. Defendants are not permitted to represent themselves, and their legal representative does not need to follow their legal directions, if determined not to be in the defendant’s best interest. While there may be limited evidence available for the hearing, the purpose is ‘to strike a fair balance between the need to protect a defendant who has, in fact, done nothing wrong and is unfit to plead at his trial and the need to protect the public from a defendant who has committed an injurious act which could constitute a crime’ (R v Antoine, 2001, p. 375).

Where a defendant is found guilty of the offence in a special hearing, there are further jurisdictional differences in how the matter is resolved. For example, in New South Wales (NSW) a judge may make an order for a bond, fine, community service order or a term of imprisonment; however, where a term of imprisonment is imposed then the Mental Health Review Tribunal must determine whether this should be spent in a mental health facility for treatment or in a correctional facility [Mental Health (Forensic Provisions) Act 1990, s 24]. Given these sentencing options, it appears that NSW legislation is primarily targeted towards upholding the principles of sentencing, such as punishment and proportionality, while ensuring access to treatment where required. In contrast, the sentencing options in the UK appear more focused on incapacitation of individuals deemed unsafe to reside in the community. In this jurisdiction a judge may issue the same orders available for individuals found not guilty by reason of insanity, which include a hospital order, a supervision order or absolute discharge [Criminal Procedure (Insanity) Act 1964, s 5 & 5 A]

Queensland has a unique set of procedures where an individual is found unfit for trial, which depend on both the seriousness of the offences and the nature of fitness. First, it must be determined whether the individual is temporarily unfit or permanently unfit [Mental Health Act 2016 (Qld) s 121]. For temporary unfitness, the person is returned for re-assessment at a later date (s 21). If the individual is permanently unfit then the proceedings against the person are discontinued, and no further proceedings for the act can be taken against the individual (s 122). Therefore, there is no provision for a special hearing in Queensland; rather here, where an individual has been charged with a serious offence and found unfit, the Mental Health Court may make a Forensic Order (Mental Health or Disability), which may result in either in-patient or community-based treatment and oversight [s 21(3) & (4)]. This appears to maintain the public interest in protection from dangerous persons; however, the lack of special hearing calls into question protections for defendants who may be innocent of the charges. While the Queensland Act precludes a soundness of mind assessment where there is a dispute of fact (s 117), there is no equivalent protection for a fitness for trial assessment. Therefore, it is possible that a person who is accused of a serious crime they did not commit may become subject to a Forensic Order if found unfit for trial.

Forensic Orders must be reviewed every six months; however, the Mental Health Court can make a non-revocation period of not more than 10 years (Mental Health Act 2016 (Qld) s 137). While the purpose of the Order is diversion rather than punishment, the impact of this legislation means an individual may be subject to supervision under a Forensic Order for a longer period of time than the imprisonment or supervision order they would have received if they were fit for trial and found guilty. This is somewhat mitigated for individuals charged with simple offences in the Magistrate’s Court¹ where complaints are dismissed with no options for Forensic Orders. This also means that a ruling of unfitness in the Magistrate’s Court is an attractive option for defence counsels as a lack of fitness can be established without the defendant needing to plea and going to a full trial, which is required for other defences in the Criminal Code Act 1899 (Qld) (Chapter 5). This process protects the defendant’s right to a fair trial yet it comes at the expense of public protection and may lead to individuals with impaired cognitive capacity engaging in repeated offending with no legal recourse to discourage their behaviour. While these outcomes are unique to Queensland, there are broader criticisms of the Presser criteria used to assess fitness in Australia, which are discussed below.

Criticisms of fitness for trial and application in Queensland

One criticism of the Presser criteria is that it does not sufficiently consider the potential role of assistance and support for defendants (Australian Law Reform Commission, 2014). These critics highlight that the criteria may lead to a lack of consideration for the court’s capacity to be accessible to people with disabilities (Victorian Law Reform Commission, 2013). Reformulation of the test has been recommended with an alternative focus on whether the person can be supported in the court proceedings, rather than whether they have capacity to take part at all (Australian Law Reform Commission, 2014). This also calls into question the potential for further court reform to ensure the process is more accessible for all participants, especially the Children’s Court where all defendants are more developmentally vulnerable than adults.

An example of such an adaptation can be observed in England and Wales, where intermediaries have been part of the criminal justice system since 2008 and can be accessed by victims, witnesses or defendants (Watts, 2014). Intermediaries support communication with vulnerable witnesses and can assist the prosecution, defence and court in the lead-up and during the trial (Ministry of Justice, 2015). Defendants are not covered by the formal intermediary scheme in England and Wales, but courts have appointed intermediaries to assist vulnerable accused persons where necessary to ensure a fair trial (Dixon v R, 2013 EWCA Crim 465). Intermediaries are made up of accredited paid professionals such as speech therapists, occupational therapists, psychologists, social workers, nurses and teachers (Ministry of Justice, 2015). In Australia, intermediaries have been introduced in South Australia and New South Wales but are limited to witnesses. Furthermore, the Tasmania Law Reform Institute is investigating the feasibility of introducing an intermediary scheme in Tasmania to facilitate equal access to justice for victims, witnesses and defendants with complex needs (Tasmanian Law Reform Institute, 2016). Queensland will begin a two-year pilot of intermediaries in Brisbane and Cairns, but this will again be limited to child complainants for child sexual abuse (Department of Justice and Attorney General, 2020). The expansion of intermediaries or other such adaptations to vulnerable defendants may also be considered consistent with the Human Rights Act 2019 (Qld) section 32 J, which provides that a person charged with a criminal offence is entitled without discrimination to the have free assistance of specialised communication tools and technology, and assistants, if the person has communication or speech difficulties that require assistance.

It has also been argued that the Presser criteria are too narrow for those who suffer from a mental illness, whereby they may meet the Presser criteria as they understand the process, yet their disorder may impact their decision-making capacity. In these instances, individuals may be put to trial when they do not have the capacity to meaningfully participate (Victorian Law Reform Commission, 2014). The Presser criteria do not require the individual to be able to retain or weigh information to make a rational or good decision; therefore the effect of disorders that can impair rational decision making, such as episodes of mania, may still impact a person’s capacity to plea and engage at trial, yet will not be sufficient to have them declared unfit.

The role of mental health clinicians in assessing the Presser criteria is also unclear. In the original ruling in Presser v R, (1958), Justice Smith reviewed medical reports from two doctors and believed that their opinion gave rise to questions of fitness; however, he did not believe the reports resolved the issue as ‘the question of fitness to be tried is one which can hardly be answered without a fairly detailed understanding of the rules of law which have to be applied in determining that question’ (R v Presser, (1958), p. 46). He went on to indicate that fitness for trial should be put before a jury to determine based on the criteria he outlined, which were to be applied in a ‘reasonable and common-sense fashion’ (p. 48). Questions of reliability and validity are addressed in an adversarial model by ensuring a balanced identification of evidence in each case and the consensus of other lay individuals regarding whether the evidence amounts to the person being unfit. Given the criteria are designed to be applied in a ‘reasonable and common-sense fashion’ (p. 34) by a lay person jury, the original ruling does not indicate what unique expertise a mental health clinician may contribute to this final decision. There is certainly a role for mental health clinicians in providing relevant evidence on mental health disorders, cognitive capabilities and developmental issues; however, there is no clear indication of how this evidence should be applied to the Presser criteria to make a final decision. A mental health disorder, intellectual impairment and developmental delays alone do not amount to a person being unfit for trial if they do not impair their capacity on at least one criterion. While a mental health clinician is likely to possess the requisite ‘common sense’ to apply the criteria, their application of the facts to the legal criteria is not supported by the procedural safeguards of an adversarial model such as consultation with fellow jury members or the legal training of a judge. It is possible that this may give rise to individual differences in how facts are applied to the legal rule.

Similar concerns have been identified when mental health professionals undertake competence for trial assessments in the United States. Within the Dusky standard, the words ‘factual’ and ‘rational’ understanding have not been clearly defined, and while efforts have been made to develop standardised assessments of competency (discussed below), it is argued that the assessments will not be adequately elucidated until the law is more clearly defined (Bagby et al., 1992). In a field where clinical judgement is already recognised as potentially inconsistent and unreliable (Garb, 1989, 2005), the lack of a clear definition leaves forensic evaluators in an even more disconcerting position of evaluating defendants in regard to psycholegal constructs with minimal assistance from the Court as to the precise meaning of those constructs (Bagby et al., 1992). This is further complicated in Australia where there is no widely accepted standardised test of fitness, and efforts to use international tests have been criticised for exploring U.S.-centric concepts rather than those relevant to Australia (van der Wijngaart et al., 2015).

Mental health clinicians in all Australian jurisdictions may experience challenges in assessing individuals with reference to the Presser criteria; however, in most jurisdictions their role is clearly to provide expert evidence and not decide the ultimate issue. In these jurisdictions either a judge (Mental Health (Forensic Provisions) Act, 1990 (NSW) s 11, Criminal Law Consolidation Act, 1935 (SA) s 269 M, Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 12) or jury [Criminal Justice (Mental Impairment) Act 1999 (Tas) s 12, Criminal Code, 1983 (NT) s 43P] decide fitness for trial as a question of fact after reviewing and weighing evidence presented. Medical professionals and other experts assist the court by providing an opinion and do not decide the fitness of the defendant. A review of the Practice Directions for the Magistrate’s Court in Queensland may indicate that mental health clinicians play a more central role in assessments of fitness than their colleagues in other jurisdictions. Unlike other jurisdictions, where fitness for trial is listed and heard by a judge and/or jury, the Queensland Magistrate Court Practice Directions state that ‘if following receipt of the Mental Health Assessment (Magistrate Court, 2017), the Assessment is not disputed, the charge may be: (a) Dismissed, if the Court is reasonably satisfied on the balance of probabilities that the Defendant was, or appears to have been . . . unfit for trial’ [para 9 and 9(a)], and a matter is only heard if there is a dispute raised about the report (para 10). While the Magistrate reviews the report and is responsible for the final decision about the case, in the absence of a dispute then it is likely that the opinion of the Mental Health Clinician is very persuasive in this context, given that it is likely to be the only piece of evidence reviewed, and the decision is based on the lower threshold of ‘balance of probabilities’. This highlights the importance of Mental Health Clinicians in fitness for trial assessments at Magistrate’s Court level in Queensland and suggests that careful attention should be paid to the process by which these assessments are undertaken to ensure cases are determined in a consistent, reliable and fair manner.

The unique approach of utilising mental health professionals to apply the Presser criteria were less obvious under the previous Mental Health Act 2000 (Qld) as raising questions of fitness was a more complex process that required referral to the Mental Health Court. Further, there was a risk that a defendant could receive a Forensic Order for a longer period than the likely sentence of the alleged crime. Given this, defence counsel were only likely to raise questions of fitness in more serious matters. With the expansion of fitness for trial decisions into the Magistrate Court and the potential for the dismissal of charges, raising this issue became a much more appealing option for defence. This is particularly true in Children’s Court matters where fitness for trial may be raised more frequently due to the defendant’s developmental immaturity. While fitness for trial assessments have previously been regarded as a rare event (Birgden & Thomson, 1999), it is now a frequent event across the Queensland Children’s Magistrate Courts, with 113 assessments conducted over a 12-month period (Childen's Court Queensland, 2019). The potential problems with the Presser criteria for a youth population are considered further below.

Assessing fitness for trial for children and young people

There are a range of protections designed to recognise and mitigate the inherent vulnerability of young people involved in the criminal justice system. The age of criminal responsibility across Australia is 10 years as it is believed that children under this age are not developmentally mature enough to be held criminally responsible for their actions [Criminal Code Act 1899 (Qld) s 29]. For children over the age of criminal responsibility, the Queensland Charter of Youth Justice principles state that ‘because a child tends to be vulnerable in dealings with a person in authority, a child should be given the special protection allowed by this [Youth Justice] Act during an investigation or proceedings in relation to an offence committed . . . by the child’ (Youth Justice Act 1991 (Qld) Schedule 1(4)). The essence of these principles have been further enshrined following the commencement of the Human Rights Act 2019 (Qld), in Queensland, which aims to protect fundamental human rights and is drawn from international human rights law. This Act provides that a child who is charged with a crime has the right to a process that considers their age and the desirability of promoting their rehabilitation (s 32).

The majority of adolescent offenders are dealt with at a Magistrate Court level (Childen's Court Queensland, 2019); therefore, the recent changes in fitness for trial legislation are a significant expansion of protection for this group. While research within Australia is limited regarding juvenile fitness for trial, Watt, O’Leary and O’Toole explored fitness for trial assessments for juvenile offenders under the previous Mental Health Act and found that juvenile offenders were half as likely to be found unfit to stand trial as were adult offenders (Watt et al., 2017). Given juvenile offenders are developmentally less mature than adults, it is unclear why they were less likely to be found unfit for trial. It is possible that this pattern has shifted following the introduction of fitness for trial assessments within the Magistrate’s court; however, it is important to consider how this legal construct is applied to young people.

Research examining the association between severe psychiatric diagnosis, such as psychosis, and juvenile fitness to stand trial has produced mixed results (Bath et al., 2015; Cowden & McKee, 1995; Kruh et al., 2006; McKee & Shea, 1999). Cowden and McKee (1995) explored competency assessments for young people in the United States and found that juveniles with a severe psychiatric diagnosis are more likely to be found incompetent for trial than those juvenile offenders with a mild or moderate diagnosis. This was re-iterated by Kruh et al. (2006) who found that psychosis is a significant factor of incompetence. In contrast, Bath et al. (2015) found that juveniles with psychosis were less likely to be determined as incompetent. In New Zealand, Tan et al. (2017) conducted a study of youth fitness to stand trial and found that for 10 youths with a diagnosis of psychosis only one was unfit to stand trial. This research is dissimilar to results found in adults, with mental health cases making up the majority for incompetence to stand trial (McGaha et al., 2001). The reasons for these different findings are unclear.

There is more consistency in the research examining the role of cognitive ability in fitness for trial. Studies have consistently found that youths with intellectual impairments are more likely to be deemed incompetent than youths without intellectual impairments (Grisso et al., 2003). Further, intellectual impairment is the reason most frequently given about underlying concerns regarding fitness for trial (Watt et al., 2017). Grisso et al. (2003) found that adolescents under the age of 13 were more likely to be deemed incompetent to stand trial due cognitive incompetence, and those under 14 years of age were more likely to have deficits in competency associated with below-average intelligence. This suggests that these assessments are in fact identifying developmental delays rather than intellectual impairment per se, as intellectual impairment does not ‘improve’ with age, while developmental gains may lead to a young person becoming fit for trial when they are older. Notwithstanding this, there is a consistent relationship between intellectual impairment and fitness. In their examination of 253 juvenile offenders, Kruh et al. (2006) found that youths with lower levels of intellectual function and a history of educational placement are significantly more likely to be assessed as incompetent. These findings were mirrored by Bath et al. (2015), whose study of 324 juveniles revealed that those with a diagnosis of pervasive development disorder or intellectual disability were more likely to be found incompetent.

Demographic factors, such as gender, ethnicity and socio-economic background of juveniles, have generally been found to be unrelated to competence to stand trial (Cowden & McKee, 1995; Grisso et al., 2003; Kruh et al., 2006; McKee & Shea, 1999). Notwithstanding this, there is some evidence that demographics may be related to who is referred for an assessment in the first place. Watt et al. (2017) interviewed 40 lawyers and youth justice professionals about young people who were not referred for assessment and found that in a 12-month period there were 133 juveniles considered by the professionals to be potentially unfit yet not referred. Of this group a substantial proportion were of Aboriginal and Torres Strait Islander background. This suggests that demographic factors, or at least ethnicity, may impact the likelihood of being referred for an assessment in the first place, which may point to more systemic inequities in procedural fairness for certain groups such as Aboriginal and Torres Strait Islander young people. For this reason, it may be important to consider the demographics of young people both referred and not referred, as well as the outcome of the assessment, to better ascertain how demographics may or may not be related to findings of fitness.

Children and younger adolescents may be at a greater risk of incompetence due to the fact that maturity, intelligence, verbal ability, attention and executive functioning increase with age (Viljoen & Roesch, 2005). Steinburg (2009) asserts that deficits for younger adolescents in adjudicative competence are consistent with research regarding the adolescent brain and cognitive and psychosocial development indicating that such juveniles are immature compared to older adolescents. This was highlighted in Graham v Florida (2011) when the court confirmed that juveniles have difficulty weighing long-term consequences and are impulsive. For this reason, Grisso et al. (2003) and Bath et al. (2015) argue that developmental immaturity could impair court-related competence. Grisso et al. demonstrated that those under the age of 15 had impairments in court-related competencies, such as inability to recognise the risks in various options and the long-term consequences attached to a particular choice, whereas 16–17-year-old adolescents showed little difference from adults in terms of cognitive ability applied to court competency. While the Presser criteria do not stipulate the ability to weigh long-term consequences, the overall findings appear to be consistent with judicial impression, with a study of judges in United States revealing that the courts’ view of competence is influenced by the offender’s age, with older youth deemed more competent than younger youth (Cox et al., 2012).

Given this research, an additional limitation of the Presser criteria is the lack of clarity around the impact of developmental immaturity. It is currently unknown whether an average 10-, 11-, 12- or 13-year-old would be found fit for trial with the Presser criteria, and without this information it is difficult to apply indicators such as an Intelligence Quotient (IQ) to determine fitness. For example, if a 10-year-old was found to have an average IQ, does this make them fit for trial? Or would they need an above-average IQ to be fit for trial? Considering the defendant’s developmental immaturity is also a complicated issue within the Children’s Court as it may also raise questions of the child’s criminal culpability at the time of the offence. Known as doli incapax in common law, the Queensland Criminal Code has enshrined the presumption that children under the age of 14 years lack the capacity to know that they ought not do the crime (Criminal Code Act 1899 (Qld), s 29(2)] and provides that, where a child is unable to make the distinction between naughty behaviour and criminal acts that are deemed seriously wrong, they should not be held criminally responsible for their actions. The prosecution must rebut the presumption of the lack of capacity to know they should not do the act only by calling proper admissible evidence. The evidential requirements were discussed in R v F; ex parte Attorney-General (1998), which indicated that the evidence will typically be gained by the police during the initial police interview, by trying to establish through admission that the child knew their conduct was ‘wrong’.

In their study of the use of doli incapax, Fitz-Gibbon and O’Brien (2019) found that, although it was under-utilised by legal professionals, they acknowledged that a lack of resource and expertise to undertake the doli incapax assessment may be the cause. They also recognised the value of an individualised assessment process and doli incapax as ‘a practical way of acknowledging young people’s developing capacities’ (Australian Law Reform Commission, 2014, para 18.20). Given this, the accessibility of fitness for trial assessments in Queensland may lead to referrers concerned about doli incapax resorting to fitness for trial assessments as a means by which to dispose of the matter, without needing to source (and fund) an assessment to raise doli incapax. This may be problematic for two reasons. First, the assessments relate to different time periods. Doli incapax related to the developmental abilities of the child at the time of the offence, while fitness for trial relates to their developmental abilities at the time of the trial, therefore it is plausible that a child may have been doli incapax when they committed the offence but by the time their matter proceeded to court they are fit for trial. Second, doli incapax and fitness for trial relate to two different areas of development. While doli incapax is related to social and moral development, fitness for trial is more related to cognitive development. In both these instances, a fitness assessment is not an adequate substitute for an assessment of doli incapax, and children may be convicted of a charge for which they should not be held criminally culpable.

Clearly, there is scope for law reform and improvement of fitness for trial assessments in Australia. The use of mental health clinicians in Queensland is a positive step as it goes some way towards integrating scientific knowledge into the legal system; however, their skills may be better utilised by applying a standardised assessment of the Presser criteria. Problems with the Presser criteria are even more salient in the Queensland Children’s Magistrate Court, where fitness assessments may be frequently required due to developmental vulnerabilities and may be inappropriately substituted for doli incapax assessments. Alternative models to approaching questions of fitness for trial with young people are discussed below.

Alternative models for addressing fitness for trial with young people

There are two broad approaches to reforming fitness for trial assessments. The first approach requires law reform to simplify the test with a focus on decision-making ability rather than a person’s intellectual ability (Australian Law Reform Commission, 2014). The use of a ‘functional capacity test’ has been recommended as it is akin to capacity tests used in guardianship and health law (Law Commission, 2016). This mirrors the findings in the United Kingdom by the Law Commission (Consultation Paper 197), which recommends changing the Pritchard test and proposes that, rather than focusing on certain aspects of a criminal trial (Law Commission, 2016), the test should focus more generally on the defendant’s decision-making capacity. In the proposed alternative test a defendant would be found unfit for trial if they are unable to understand the information relevant to the decisions that they will have to make during the course of their trial, and be unable to retain that information, use or weigh that information as part of a decision-making process or communicate their decisions. This test would not rely on rote learning of charges and legal concepts, but rather the ability to engage sufficiently to mount a defence if needed. Such a test may also be more appropriate for young people, whose capacity for decision making depends on their level of cognitive development, which is not explicitly considered by the Presser criteria.

The alternative approach is to maintain the current Presser criteria and develop a standardised measure that explores each of the criteria. This approach is used in the United States with several examples of competency assessments based on the Dusky standard. The main competency assessments are made up of structured and semi-structured interviews that are used to assess fitness for trial. Two examples include the MacArthur Competence Assessment Tool–Criminal Adjudication (MacCAT–CA), and the Evaluation of Competency to Stand Trial–Revised (ECST–R).

The MacCAT–CA is a structured assessment and contains a standardised interview format, consisting of 22 items, that evaluates three discrete competence-related abilities: understanding, reasoning and appreciation. The purpose of the MacCAT–CA is to assess the defendant’s capability to assist the defence, to competently make decisions and to cope with the circumstances of his or her legal situation. The instrument uses a vignette format and objectively scores questions to measure the three competence-related abilities (Roesch et al., 1999; Zapf et al., 2005). Numerous researchers of competency to stand trial have expressed positive opinions regarding the MaCAT–CA (Blake, Ogloff, & Chen, 2019). Furthermore, what stands out with the MaCAT–CA is the focus on competence of the defendant to effectively participate in the adjudication process, as opposed to merely being competent to stand trial as defined by the Dusky standard (Nussbaum et al., 2008). A criticism is that it is a poor match with the Dusky standard, and the use of a hypothetical case appears to conflict with the Dusky standard directive to focus specifically on the defendant’s pending case (Rogers et al., 2003).

The ECST–R is a standardised (semi-structured) interview for evaluating competency to stand trial related to the Dusky standard (Rogers et al., 2004). There are four main sections, which explore key elements of the Dusky standard including three competency scales that include Consult-with-Counsel scale, Factual Understanding and Rational Understanding. Similar to the Australian and New Zealand Evaluation of Fitness to Stand Trial–Revised (ANZ–EFST–R) test for feigning, a fourth element is designed to screen for malingering. A small set of background questions are also provided (Rogers & Shuman, 2005). The ECST–R has an advantage over other competency to stand trial assessments because the items are strongly represented in the Dusky standard, and it was developed to assess competency as mandated by Dusky (Rogers et al., 2003). The ECST–R has demonstrated reliability in assessing the defendant’s factual and rational understanding, the consequences of their legal situation and their ability to engage effectively with their lawyer (Blake, Ogloff, & Chen, 2019).

Recently, researchers in Australia have adapted the ECST–R to develop the ANZ–EFST–R (Blake, Ogloff, & Rogers, 2019). Identifying the need for a standardised assessment of fitness in Australian, the research group began with a meta-analysis of international measures of fitness and identified that the ECST–R had good psychometric properties and good face validity due to the use of expert consensus in developing items based on the Dusky standard (Blake, Ogloff, & Chen, 2019). G. Blake (personal communication, July 24, 2020) reported that following this, the researchers undertook a series of projects to support the development of the tool. This included a review of all Supreme and High Court decisions in Australia to explore the case law on the Presser criteria and an analysis of 248 clinician reports on fitness for trial to explore how each of the criteria has been addressed in practice. From this, Blake and his colleagues adapted the ECST–R to develop a list of individual items that they pilot tested with the general public to ensure the language was appropriate for a ‘lay’ audience and then explored the relevance of the items with a legal audience including judiciary, prosecution and defence counsel. Finally, a semi-structured interview protocol was developed and is currently being used in field testing with an adult population. While developing such a standardised test increases the consistency in decision making across evaluators, the test may need to include considerations of doli incapax if applied to young people. Without a standardised consideration of this possible defence, there is an ongoing risk that children and young people will be inappropriately convicted of offences that they are not criminally culpable of because it is easier to obtain an assessment of fitness for trial than doli incapax.

Without law reform, the Australian legal system would benefit from the implementation of a standardised assessment of the Presser criteria to ensure that this procedural safeguard is consistently applied. This is particularly important for simple offences in Queensland, where mental health clinicians are responsible for gathering, reviewing and weighing evidence of fitness for trial. Individual differences in the way that this information is gathered or weighed may result in discrepant outcomes for defendants based on subjective clinical judgement rather than actual differences in fitness. It is not yet clear whether the ANZ–EFST–R can be applied to a youth cohort, and further research is required before widespread adoption of this in Children’s Courts could be supported. At the very least, where developmental vulnerabilities are identified during a fitness assessment, an alternative assessment of doli incapax should be considered by legal counsel, regardless of the fitness outcome. This will minimise the risk that children who were not criminally culpable at the time of the offence are found guilty because exposure to the legal system and assessment process has made them ‘fit for trial’.

Conclusion

Fitness for trial assessments are an important procedural safeguard for defendants, yet there is some criticism of the legal criteria in Australia and United Kingdom due to the emphasis on knowledge and communication over the capacity to engage in meaningful decision making. Beyond this, the unique legislation in Queensland means those charged with simple offences are assessed by mental health clinicians, yet they currently lack access to an evidence-based standardised assessment of fitness, and it is unclear how developmental vulnerabilities of young people in the Children’s Court are accounted for. Further, there is a risk that fitness for trial assessments may be used as an inappropriate substitute for a doli incapax assessment. While standardised assessments may go some way in addressing these issues, there is clearly scope for further research and law reform of fitness for trial, particularly as it pertains to youth.

Ethical standards

Declaration of conflicts of interest

Christian Bullough has declared no conflicts of interest

Chelsea Leach has declared no conflicts of interest

Scott Harden is the Medical Director of the Forensic Child and Youth Mental Health Service, who are contracted to undertake Fitness for Trial assessment for Queensland Magistrate Children’s Court. In addition, he is an Assisting Psychiatrist for the Queensland Mental Health Court, who hear Fitness for Trial applications for indictable offences.

Ethical approval

This article does not contain any studies with human participants or animals performed by any of the authors.