Chapter 14 Mental health and capacity

Chapter 14

Mental health and capacity

Chapter 14--Mental health and capacity

A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (14-1?14-4) B. Obtaining instructions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (14-5?14-8) C. Representing clients with capacity issues in the magistrates court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (14-9) D. The mental health court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (14-10?14-13) E. Defendants charged with an offence who are on an involuntary treatment order or a forensic order. . . . . . . . . . . . . (14-14) F. Defendants charged with an offence who are not subject to an involuntary treatment order or a forensic order. . . (14-15) G. Outcomes in the mental health court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (14-16?14-21) H. After a finding of unsound mind or unfit for trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (14-22?14-23) I. The Mental Health Review Tribunal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (14-24) J. General matters, classified patients and Commonwealth offences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (14-25?14-31)

A. Introduction

14-1 Situations facing lawyers

As a duty lawyer, you will probably have to deal with a defendant who: ? appears to be mentally ill or intellectually disabled ? may have been mentally ill at the time of an alleged offence ? may be both.

This chapter addresses what you should do in such situations. You may be alerted to the possibility of these situations by the: ? defendant's behaviour at interview ? defendant's apparent inability to give coherent or rational instructions ? defendant giving a history of psychiatric treatment ? defendant giving a history of institutional care for intellectual disability ? facts of the alleged offence itself.

14-2 What is a mental illness?

The Mental Health Act 2000 (Qld) (MHA) defines mental illness as a condition characterised by a clinically significant disturbance of thought, mood, perception or memory.

14-3 What is an intellectual disability?

A person with an intellectual disability has significantly below average intellectual functioning with onset before age 18 years and concurrent deficits or impairments in adaptive functioning (DSM-IV-TR Diagnostic and Statistical Manual of Mental Disorders (2000)). Adaptive behaviour refers to the effectiveness with which a person meets the demands of daily living (such as eating and dressing, communication, locomotion, socialisation and responsibility).

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14-4 What is a cognitive impairment?

Cognitive impairment is a broad term to describe a wide variety of impaired brain function relating to the ability of a person to think, concentrate, reaction to emotions, formulate ideas, problem solve, reason and remember. It is distinct from a learning disability insofar as it may have been acquired later in life as a result of an accident or illness.

B. Obtaining instructions

14-5 Advice on obtaining instructions

The main issue for you, as the duty lawyer, is to obtain the defendant's instructions. If you can obtain coherent and rational instructions, you should act on them. However, you need to be cautious and alert before accepting instructions. If you have any doubt about the defendant's fitness to plead, do not enter any plea; instead, seek an adjournment to enable the defendant to seek more extensive legal advice. Although you may have doubts about the defendant's fitness to plead, you may still act to obtain a remand or apply for bail.

If you cannot obtain coherent or rational instructions, this means no solicitor?client relationship has been established. You then have a duty to inform the court that you cannot obtain instructions due to concerns about the defendant's fitness for trial or to plead. This will alert the court and enable it to take appropriate steps to determine the defendant's fitness. In this situation, the court could consider a court-ordered assessment (as discussed in 14-15).

Your duty lawyer obligations are the same whether you believe the defendant has a mental illness, intellectual disability or cognitive impairment.

14-6 Considerations when assessing defendants' capacity to provide instructions

Common symptoms and characteristics of mental illness or intellectual disability or cognitive impairment, which may alert you to the possibility that your client may have a mental illness or intellectual disability or cognitive impairment, include: ? avoidance of eye contact ? difficulty understanding the motivation, perspectives or feelings of others ? difficulty coping with changes ? decreased ability to learn new skills ? coordination problems.

When assessing the defendant's fitness to plead, you should consider whether or not the defendant can: ? read ? write ? manage money ? tell the time ? cook ? communicate clearly with other people, and ? look after their personal care.

Can the defendant recall significant things about: ? themselves (e.g. birthday) ? where they live, and ? what you have said to them?

Has the defendant: ? attended a special school or a class within a mainstream school

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? attended court with a carer ? lived in an institution or mental health unit/intellectual disability service?

Has an Adult Guardian been appointed under the Guardianship and Administration Act 2000 (Qld)?

If the client is subject to an order under the Guardian and Administration Act making the Office of the Adult Guardian decision maker for his/her legal affairs you should take steps to ensure the Office of the Adult Guardian is informed about the defendant's attendance before the court. It is unethical to proceed to deal with a person the subject of such and order without making every reasonable effort to gain the involvement of the guardian. The guardian may provide instructions about how the case is to proceed, which you are bound to follow, even if they conflict with the client's instructions and your own view.

Has the defendant been subject to an Involuntary Treatment Order?

If the client is subject to an involuntary treatment order or forensic order under Chapter Seven, Part Two of the MHA, the case cannot proceed until certain measures have been formally undertaken pursuant to the MHA (refer to Chapter Seven, Part Two MHA). However, you can apply for bail for the client.

14-7 Applying the Presser test

If you suspect your client is mentally impaired and you have ascertained that he/she is not subject to a guardianship order or an Involuntary Treatment Order, you must determine if the client's impairment restricts your capacity to take instructions.

Ask the client simple, non-leading questions to determine if he/she appreciates the circumstances which led to the charge. The guide to determining a person's level of capacity is the test established in R v Presser [1958] VR 45. You will need to take the client through each of the criteria outlined in that case and satisfy yourself that the client satisfies each criterion before moving on to the next. You will need to do this by asking the defendant simple, nonleading questions and giving him/her time to explain their position.

The Presser criteria are: 1. Ability to understand the charge -- this involves a basic understanding of the essential facts of the charge and

the elements of the offence. 2. Ability to plead to the charge and to exercise the right of challenge -- the client must understand that a plea of

guilty is an acceptance that the essential facts and elements of the offence are established. 3. An understanding of the nature of the proceedings, namely, that it is an inquiry as to whether he/she committed

the offence charged -- the client must understand that he/she is involved in a formal process inquiring into his/ her responsibility for the matter alleged and be aware of the potential consequences of that process. 4. Ability to follow the course of proceedings so as to understand what is happening in court in a general sense, though not necessarily understand the purpose of all the various court formalities -- this involves following the proceedings and understanding the roles of the various participants. 5. Ability to understand the substantial effect of the evidence that may be given -- the client must have an awareness of the implications of the prosecution evidence. 6. Ability to make a defence or answer to the charge -- the client must be able to give the court a basic version of the facts as he/she claims them to be, if necessary through his/her lawyer, by entering the witnesses box and responding to questions in evidence-in-chief and cross-examination.1

Fitness for trial is further defined by the MHA to include the ability to endure a trial without serious adverse consequences to the defendant's mental condition becoming likely. If the defendant is likely to become unfit at some point in the trial due to his/her impairment, then he/she is considered to be unfit.

1 See Briggs,J. Ethical considerations for duty lawyers representing mentally impaired persons, presentation to Legal Aid Queensland Duty Lawyer Training, March 2011, for a more detailed discussion of the way to take defendants through the Presser criteria.

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Each of the above criteria needs to be met for the client to be fit for trial. However, a client may be fit to plead guilty and take part in sentence proceedings but be unfit to plead not guilty and stand trial on the charge, i.e. failure to meet Presser criteria number 6 does not make the client unfit to plead guilty.

If you have any doubt as to whether or not the defendant has a mental illness, intellectual disability or cognitive impairment, do not enter any plea; instead seek an adjournment to obtain a psychiatrist or psychologist report (depending on the more extensive legal advice).

A client may appear to be unfit to plead based on an assessment of the above criteria but insist on pleading guilty for one or more of a number of reasons, for example, he or she may wish to have the matter disposed of immediately or may not wish to have the issue of his or her mental condition or disability the subject of court proceedings. However, where a lawyer has a real and substantial doubt about a client's fitness to plead, the lawyer cannot conduct a plea of guilty on the client's behalf. (Barristers' conduct rules 2011, number 5; Miles AJ. Inquiry under s 475 of the Crimes Act 1900 into the matter of fitness to plead of David Harold Eastman (6 October 2005).) If such a client insists on pleading guilty, contrary to the lawyer's advice, the lawyer should withdraw from the case, explaining the reason why the lawyer must withdraw to the client and inform the prosecutor and the court of the lawyer's views and concerns.

Not all impaired people are necessarily unfit to plead or have a defence of insanity. A client may have an intellectual disability or cognitive impairment (IDCI) that appears significant or severe, but still have legal capacity and be fit to plead to a charge or to be tried. It is the lawyer's responsibility to form a view based on the client's response to the questions posed above.

It is also important to respect the right of people with mental illness or IDCI to take responsibility for themselves. An impaired person's disability should not limit his or her fundamental human rights. An impaired person has the same fundamental right as non-impaired people to be treated as `a person' in court, and not merely a patient or an individual under care. Unless there has been a formal decision that an impaired person lacks capacity to deal with his or her legal affairs, he/she has the same rights as others to make fundamental decisions, especially in relation to legal matters.2 To bring a person into the mental health system or have their rights limited under a guardianship order can have significant impacts on their rights as an individual and to make personal decisions.

It is essential that your written instructions deal thoroughly with the issue of your client's capacity. Some of the important issues in relation to capacity that your instructions should address are: ? why you believed the client may be impaired ? how you inquired about whether the client had a statutory decision maker or was subject to an involuntary

treatment order or forensic order ? each of your Presser assessments ? that the client understands that you were mindful that his or her fitness may be an issue, and that you

investigated that matter with him.

If it appears from the prosecution brief and the client's instructions that the client may have a defence of unsoundness of mind, the lawyer should advise the client accordingly. However, again the client may wish to plead guilty. If the client is fit for sentence, you may enter a plea of guilty on his/her behalf. However, you should advise the client of the advantages and disadvantages of both courses and note this in your written instructions to enter a plea of guilty.

14-8 Defence of unsoundness of mind, partial defence of diminished responsibility and fitness for trial

Every duty lawyer should be aware of provisions in the MHA and Criminal Code Act 1889 (Qld) relating to the defence of unsoundness of mind, the partial defence of diminished responsibility (only applicable if the charge is murder) and

2 See United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (1991); United Nations Convention on the Rights of Persons with Disabilities (2006).

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