This article outlines a project in which supported decision-making (SDM) and broader support to exercise legal capacity were provided to accused persons with cognitive disabilities in the Australian criminal justice system. The program was developed to advance the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in relation to “unfitness to plead” laws. The researchers collaborated with three community legal services in three Australian jurisdictions. Four nonlegal “disability support people” were trained to work with accused persons alongside legal counsel to maximize their participation in the trial process and avoid the need for unfitness to plead determinations under current laws. The article draws on qualitative research conducted in the form of interviews with clients, lawyers, and support persons. The findings provide an evidence base for implementing SDM for persons with disabilities in the criminal justice system. It also helps answer the question of whether unfitness to plead laws should be repealed in pursuit of a “universally accessible” justice system in line with the CRPD.
Arstein-KerslakeA. (2016). An empowering dependency: Exploring support for the exercise of legal capacity. Scandinavian Journal of Disability Research, 18(1), 77–92. https://doi.org/10.1080/15017419.2014.941926
2.
Arstein-KerslakeA.FlynnE. (2016). The general comment on Article 12 of the Convention on the Rights of Persons with Disabilities: A roadmap for equality before the law. The International Journal of Human Rights, 20(4), 471–490. https://doi.org/10.1080/13642987.2015.1107052
3.
Arstein-KerslakeA.GoodingP.AndrewsL.McSherryB. (2017). Human rights and unfitness to plead: The demands of the Convention on the Rights of Persons with Disabilities. Human Rights Law Review, 17(3), 399–419. https://doi.org/10.1093/hrlr/ngx025
4.
Arstein-KerslakeA.GoodingP.MercerS.RaymondM.McSherryB. (2019). Implementing a participatory human rights-based methodology: The Unfitness to Plead Project. Journal of Human Rights Practice, 11, 589–606.
Australian Senate. (2016). Indefinite detention of people with cognitive and psychiatric impairment in Australia: Report of the Community Affairs Reference Committee. Senate Printing Unit.
10.
BaldryE.McCauslandR.DowseL.McEntyreE. (2015). A predictable and preventable path: Aboriginal people with mental health and cognitive disabilities in the criminal justice system (Indigenous Australian with Mental Health Disorders and Cognitive Disabilities in the Criminal Justice System Report, University of New South Wales). https://www.mhdcd.unsw.edu.au/a-predictable-and-preventable-path-iamhdcd-report.html
11.
BlaggH.TulichT.BushB. (2015). Diversionary pathways for Indigenous youth with FASD in western Australia: Decolonising alternatives. Alternative Law Journal, 40(4), 257–260. https://doi.org/10.1177/1037969X1504000409
FlynnE.Arstein-KerslakeA. (2014). Legislating personhood: Realising the right to support in exercising legal capacity. International Journal of Law in Context, 10(1), 81–104. https://doi.org/10.1017/S1744552313000384
17.
FreckeltonI.KeyzerP. (2017). Fitness to stand trial and disability discrimination: An international critique of Australia. Psychiatry, Psychology and Law, 24(5), 770–783. https://doi.org/10.1080/13218719.2017.1379105
GoodingP. (2013). Supported decision-making: A rights-based disability concept and its implications for mental health law. Psychiatry, Psychology and Law, 20(3), 431–451. https://doi.org/10.1080/13218719.2012.711683
20.
GoodingP.Arstein-KerslakeA.AndrewsL.McSherryB. (2017). Unfitness to stand trial and the indefinite detention of people with cognitive disabilities in Australia: Human rights challenges and proposals for change. Melbourne University Law Review, 40(3), 816–865.
21.
GrubinD. (1996). Fitness to plead in England and Wales. Psychology Press.
22.
HsiehH. (2005). Three approaches to qualitative content analysis. Qualitative Health Research, 15, 1277–1288.
23.
JesteD.EglitG.PalmerB.MartinisJ.BlanckP.SaksE. (2018). An overview of supported decision in serious mental illnesses. Psychiatry: Interpersonal and Biological Processes, 81(1), 28–40.
24.
KokanovicR.BrophyL.McSherryB.FloreJ.Moeller-SaxoneK.HerrmanH. (2017). Supported decision-making from the perspectives of mental health service users, family members supporting them and mental health practitioners. Australian and New Zealand Journal of Psychiatry, 52(9), 826–839.
Law Council of Australia. (2016). Indefinite detention of people with cognitive and psychiatric impairment in Australia.
27.
McCauslandR.ReeveR.GoodingP. (2019). The economic case for improving legal outcomes for accused persons with cognitive disability: An Australian study. International Journal of Law in Context, 15(4), 367–389.
28.
McSherryB.BaldryE.Arstein-KerslakeA.GoodingP.McCauslandR.ArabenaK. (2017). Unfitness to plead and indefinite detention of persons with cognitive disabilities. Melbourne Social Equity Institute, University of Melbourne.
SotiriM.SimpsonJ. (2006). Indigenous people and cognitive disability: An introduction to issues in police stations. Current Issues in Criminal Justice, 17(3), 431–443. https://doi.org/10.1080/10345329.2006.12036369
Please find the following supplemental material available below.
For Open Access articles published under a Creative Commons License, all supplemental material carries the same license as the article it is associated with.
For non-Open Access articles published, all supplemental material carries a non-exclusive license, and permission requests for re-use of supplemental material or any part of supplemental material shall be sent directly to the copyright owner as specified in the copyright notice associated with the article.
