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?

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 rightsRight 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 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

3rd 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 AustralianAggravated 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 JusticeReferred by Courts for fitness ax

Small opportunity sample – approx 15 - 20

Control Group – via DCSRemandees awaiting trial

Approximately 40.

Measures

Demographic & Justice System Experience

MMSE

BPRS

WASI + WAIS III Comprehension

MacCAT-Au(SA)

Procedure

All participants same batteryCheck for previous WASI / WAIS

Locations vary – participant dependant

Expert opinions collected after Ax for comparison

Outcomes

Expert FITMacCAT FIT

Expert FitMacCAT UNFIT

Expert UNFITMacCAT FIT

Expert UNFITMacCAT FIT

Delimitations

Preliminary testing only

Not immediately generalisable to other states

Not produce a clinically useful toolHopefully 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 Seminar

for the

Doctorate of Psychology (Clinical and Forensic)

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

Sam van der Wijngaart James Cook University