Ian Freckelton

Autism Spectrum Disorder: Forensic Issues and Challenges for Mental Health Professionals and Courts.

Autism spectrum disorder (ASD), as defined in DSM-V, can be relevant in a variety of ways to decision-making by courts and tribunals. This includes the family, disciplinary, discrimination and criminal law contexts. By reviewing decisions made by superior courts in a number of common law jurisdictions, this article identifies a pivotal role for mental health professionals closely familiar with both the disorder and forensic exigencies to educate courts about the inner world of those with ASD. Highlighting areas of criminality that court decisions have dealt with, especially in relation to persons with Aspergers Disorder, as defined by DSM-IV, it calls for further research on the connection between ASD, on the one hand, and conduct, capacities and skills, on the other hand. It urges enhancement of awareness of the forensic repercussions of the disorder so that expert evidence can assist the courts more humanely and informedly to make criminal justice and other decisions.

Decision‐making about involuntary psychiatric treatment: An analysis of the principles behind Victorian practice

The author analyses 10 years of published decisions by the Victorian Mental Health Review Board in relation to the involuntary detention for treatment of those with mental illness. He argues that by and large the Board has taken a broad psychosocial approach to assessing whether treatment options that are less restrictive than those which are coerced are feasible. The guiding question has been whether a patients health or the safety of the community have demanded involuntary provision of treatment However, he argues that although such an approach is enshrined in Victorian mental health legislation, United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care and the approach propounded by the therapeutic jurisprudence movement, each of these adds little to the other in terms of assisting decision‐makers in individual cases. He maintains that considerable room still exists for decision‐making which is generated by unarticulated “best interests o...

Attributions about domestic violence: A study of community attitudes

Attributions of responsibility and causality, and other beliefs about behaviours and affective states of individuals in domestic violence situations, were investigated in interviews with 188 men and women (aged 18 to 65 years) in six suburban locations in Melbourne, Australia. Participants were selected using a stratified random sampling procedure designed to include persons from three different socio‐economic levels. Two vignettes depicting a mans physical and verbal abuse of his female partner were presented. In one scenario, the battered woman kills her abuser; the other scenario shows the abuser being taken away by police. The results indicated that attributions of responsibility were best predicted by beliefs about the impact of alcohol and the extent to which the actors could predict control and moderate violent behaviour. Most respondents believed the battered woman acted in self‐defence and should not be found guilty of murder for killing the perpetrator. The findings are discussed in relation to...

Autism Spectrum Disorders and the Criminal Law

While criminal offending by persons with Autism Spectrum Disorders is rare (see R v George, 2004: at [44]; see also Bishop, 2008), the symptoms of such disorders have the potential to be relevant to almost every aspect of the criminal justice process from interviews with suspects by the police, to accused persons’ fitness to stand trial, a variety of defences to which accused persons may be entitled, especially self-defence, mental impairment/insanity, provocation and diminished responsibility, and to the sentencing process. For over 20 years there have been suspicions (see eg Tantam, 1988) that persons with such disorders may not just be alienated from the general community, but have been over-represented in the criminal justice population. ”In 2004 the National Autistic Society in the United Kingdom (2004: 4) stated: “There is (sic) no data on the proportion of people with autism in the prison population. The NAS is aware of reports from families of distressing encounters with the police where an individual’s condition has not been recognised, or where their needs are not properly understood in prison.Without an informed and flexible approach to management custodial sentences can be highly punitive and completely unproductive for a person with autism, and it is important that their increased vulnerability to abuse is recognised.”” Recent court decisions in the United Kingdom, Australia, New Zealand and Canada are notable for their exploration of ways in which such disorders, especially Asperger’s disorder, have the potential to exclude or mitigate criminal responsibility and culpability. This chapter explores issues arising in the criminal law for persons with the Autism Spectrum Disorder that most often arises in criminal law proceedings: Asperger’s disorder, often described as high functioning autism. It does so by analysing recent court decisions in a number of countries and reflecting upon the extent to which expert evidence is enabling courts to evaluate effectively the ramifications of the disorder within the context of determining criminal responsibility and culpability.

“Cults”, calamities and psychological consequences

Because of the many controversies, and claims and counterclaims, about psychological damage asserted to be caused by religious groups, known in the media as “cults”, but more particularly because of the numbers of members who have died in highly publicised circumstances, there is a need for both mental hearth practitioners and legal practitioners to familiarise themselves with issues relating to the potential sequelae of membership of such groups. To contextualise the analysis of a significant English decision about the welfare of a “cult” child, the author analyses different approaches to the definitions of “cult”. He also evaluates the vexed concepts of “mind control”, “brainwashing” and “coercive persuasion” in order to provide a framework for assessing when such groups have the tendency to exercise a harmful effect upon their members. Taking into account the many differences of professional opinion concerning the harmfulness of such groups, he assesses the most important case thus far in Anglo‐Austral...

The Transformation of Regulation of Psychologists by Therapeutic Jurisprudence

Therapeutic jurisprudence has the potential to enhance sensitivity to the public health and mental health ramifications of both investigations and hearings in the disciplinary context. In this article the authors explore the practical relevance of therapeutic jurisprudence considerations to the work of regulatory agencies that receive and make decisions in response to allegations of unprofessional behaviour by psychologists. They argue that the therapeutic jurisprudence paradigm has a useful role in enhancing investigations and decision-making, both in terms of providing potential prophylaxis of unethical conduct by other members of the professional community and in enhancing the insight of individual psychologists as to the causes and risks of their inappropriate conduct.

Choice, Rationality, and Substance Dependence

One of the difacult issues that emerges from Louis C. Charland’s (2002) article is the nature of “addiction.” The author cites Leshner on a number of occasions in relation to the effects of addiction—to say that heroin users suffer from an “uncontrollable compulsion to seek and use drugs” (Leshner 1999, 3) and to state that the heroin user’s mind “is hijacked” by the drug. Charland summarizes by saying that “addicts are no longer themselves and in that sense can no longer be considered accountable for their decision to use heroin.” I would like to question the legitimacy of the employment of such emotive language in relation to regular users of opiates. I do not suggest that frequent heroin use does not induce physical and psychological dependence, including cravings for the drug. Heroin has major lifestyle impacts for many, but to what extent is its use incompatible with rational decision making in such questions as whether to give up the drug, whether to enter a methadone program, or whether to receive prescribed heroin? Even the extent to which addiction is a useful concept in this context is questionable. As Blau (1996) has argued, addiction is for the most part a lay term and generally a nebulous one:

Indefinite Detention of Sex Offenders and Human Rights: The Intervention of the Human Rights Committee of the United Nations

In 2010 The Human Rights Committee of the United Nations (the UNHCR) made rulings on two “communications” submitted by Australian citizens, Robert Fardon and Ken Tillman, about what they contended was the unlawfulness of their preventive detention in Queensland and New South Wales respectively. The UNHCR upheld their applications and declared their detention unlawful by virtue of its constituting a breach of Article 9, paragraph 1, Article 14, paragraph 1, and Article 15, paragraph 1, of the International Covenant on Civil and Political Rights. The decision has major ramifications for the preventive detention systems in Queensland, New South Wales, Victoria, and Western Australia. It provides a fillip for a new rehabilitative, non-penitential focus for such regimes and raises ethical issues for mental health practitioners currently functioning in and advising in relation to such systems.

Judicial pedagogy and expert evidence on victims' responses to trauma: Jv The Queen (1994) 75 A Crim R 522 F v The Queen (1995) 83 A Crim R 502

It has recently been argued by Faunce and McSherry1 that appellate courts have an important educative and regulatory role in respect of professionals, a role which they maintain the courts have not been discharging well enough. Two important cases in Victoria2 and South Australia3, however, have recently articulated a series of principles for the giving of opinion evidence on matters related to mental health expertise. Scrutiny by prosecutors and experts of the defects highlighted by the courts in the evidence elicited at trial in the two cases and of the principles identified by the courts has the potential to make significant improvements in relation to the giving of expert evience by psychiatrists and psychologists.

Custody and access disputation and the prediction of children's safety: A dangerous initiative

Controversial 1995 amendments to the Guardianship Act 1968 (NZ) propose to preclude parties to a marriage from exercising custody or unsupervised access over their children if they are proved to have been violent within the marriage unless they show on the balance of probabilities that the child will be safe in their care. Similar presumptive models are being urged upon a number of other legislatures. Such legislation has an ideological attraction but may have unforeseen, draconian consequences for the resolution of family law disputes. Prediction of dangerousness by mental health professionals has proved to be a flawed art. Yet without such evidence the “violent party” is unlikely to be able to discharge his or her onus to prove likely safety. Such evidence may well need to include evaluation of rehabilitative schemes, such as educational and anger‐management programmed whose long‐term efficacy is dubious but have yet to be authoritatively evaluated. The result is that the presumptive model may fail to t...