Crimes Mental Impairment consultation paper.pdf - Victorian Law ...

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Decision-making capacity or effective participation
4.32 The current test of unfitness to stand trial that focuses on the intellectual ability of the
accused person may be problematic for a number of reasons. First, the current criteria are
difficult to apply in relation to accused people with a mental illness because these criteria
were not designed for them. 38 The criteria developed through experience with accused
people who were deaf and mute like Dyson and Pritchard, and by extension accused
people with an intellectual disability, but not accused people with a mental illness. 39
However, to compound the confusion, orders were made in relation to these accused
people as if they were ‘insane’. 40 Brookbanks observes:
The fitness to plead rules have developed without proper regard for the distinctive
characteristics and needs of the people whose very interests they are designed to protect.
As a consequence of this development, subsequent legislation in many jurisdictions also
failed to distinguish intellectually disabled from insane offenders …. At the same time
legislation has often failed to provide an appropriate range of dispositional options suited
to the particular developmental, medical and social needs of the respective groups. 41
4.33 An accused person with a mental illness, for example, may have no trouble having
a factual or an intellectual understanding of their right to challenge a juror, but their
delusional beliefs may hinder them from making decisions to exercise that right (or having
a ‘decision-making capacity’). On the other hand, an accused person with a cognitive
impairment or intellectual disability may have more trouble than an accused person
with a mental illness to understand this right. This raises the question of whether the
current criteria are suitable for people with a mental illness and whether the threshold for
unfitness to stand trial is currently set at the right level for these people.
4.34 There is also a question of whether the test continues to be a ‘suitable modern basis for
determining the issue [of unfitness to stand trial]’ and whether it sets too high a threshold
for a finding of unfitness to stand trial. 42 In some jurisdictions, debate has focused on
whether the test for unfitness to stand trial should be based on the Pritchard or Presser
criteria (that rely on the intellectual understanding of the accused person), or something
more than this (such as the decision-making capacity or effective participation of the
accused person). 43 The test for competency in the United States of America (that is the
equivalent of the unfitness to stand trial test) already requires a stricter standard. In
that jurisdiction the test requires a ‘sufficient present ability to consult his lawyer with
reasonable degree of rational understanding – and whether he has a rational as well as a
factual understanding of the proceedings against him’. 44 Although the discussion in other
jurisdictions is yet to result in legislative change, this debate signals a potential shift from
the current emphasis on passive participation, based on mere factual understanding, to a
requirement that the accused person be able to more actively participate in the trial, for
example, by making decisions.
4.35 In Victoria, the Presser criteria do not necessarily exclude a consideration of a person’s
decision-making capacity. However a clear link has not yet been expressed. Adopting a
test where decision-making capacity or effective participation is considered would change
the threshold for unfitness to stand trial and would likely result in more people being
found unfit to stand trial. Whether Victoria should adopt this formulation depends on
whether the threshold for unfitness to stand trial should change, and what capacities
should be implied in reaching a new threshold. 45
38 Ibid 271.
39 Brookbanks, above n 5, 173–4.
40 Ibid.
41 Ibid 174.
42 Law Commission, Unfitness to Plead, Consultation Paper No 197 (2012) 27–32.
43 See, eg, Law Commission, Unfitness to Plead, Consultation Paper No 197 (2012) 51–67; W J Brookbanks and R D Mackay, ‘Decisional Competence
and ‘Best Interests’: Establishing the Threshold for Fitness to Stand Trial’ (2010) 12(2) Otago Law Review 265; New South Wales
Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and
Consequences, Consultation Paper No 6 (2010) 7–12.
44 Dusky v United States 362 US 402 (1960).
45 Brookbanks and Mackay, above n 37, 265.
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