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Unfitness to Plead And Indefinite Detention Of Persons With Cognitive Impairments: Addressing The Legal Barriers And Creating Appropriate Alternative Supports In The Community

Unfitness to stand trial’ rules in Australia have been the subject of human rights and law reform enquiries in recent years, following concerns that such rules may violate the rights of people with cognitive disability in the criminal justice system. ‘Unfitness to stand trial rules’ refer to procedures by which courts decide that a person cannot meaningfully participate in and understand criminal trial proceedings brought against them. Such rules are designed to prevent disadvantage by ensuring that people receive a fair trial. Yet unfitness to stand trial provisions have the potential to create a separate and lesser form of justice for people with cognitive disabilities. At worst, people with cognitive disabilities found unfit to stand trial are subject to indefinite detention, including being detained for longer than if had they been convicted and sentenced in the first place.

The aim of this project is to develop practical and legal solutions to the problem of people with cognitive impairments, including Indigenous people with cognitive impairments, being found “unfit to plead” and subject to indefinite detention in Australia. A secondary aim is to better ensure that people with cognitive disabilities can meaningfully participate, on an equal basis with others, in criminal proceedings brought against them. This secondary aim responds to the issue of people who may not be able to understand and meaningfully participate in a trial, but who nevertheless proceed through typical trials due to the inappropriateness or inaccessibility of unfitness rules in their current form.

The project is funded as part of the Australian Government Department of Social Services, National Disability Research and Development Research Scheme.

Project Aims:

  • Analyse the social, legal and policy issues leading to unfitness to plead findings and indefinite detention in Australia, with a strong focus on the experiences of Indigenous people
  • Provide and evaluate supported decision-making for up to 60 individuals with cognitive impairments who have been charged with a crime and who may be subject to unfitness to plead processes
  • Recommend options for the reform of unfitness to plead law and policy

The expected outcomes are the:

  • Analysis of the differences and similarities in unfitness to plead laws and policy across the Australian states and territories
  • Development and evaluation of a practice model in supported decision-making in the criminal justice context that can be used in Australia and abroad
  • Creation of recommendations for law and policy reform in compliance with human rights standards.


The researchers conducting the project are Chief Investigator (CI) Professor Bernadette McSherry (Foundation Director, Melbourne Social Equity Institute, University of Melbourne); CI Professor Kerry Arabena (Chair of Indigenous Health, University of Melbourne); CI Professor Eileen Baldry (School of Social Sciences, University of New South Wales (UNSW)); CI Dr Anna Arstein‐Kerslake (Academic Convenor, Hallmark Disability Research Initiative, Melbourne Law School, University of Melbourne) and Post-Doctoral Research Fellow Dr Piers Gooding (Melbourne Law School, University of Melbourne), Louis Andrews (Research Assistant, University of Melbourne) and Dr Ruth McCausland (Research Assistant, UNSW).

For enquiries, please contact the post-doctoral researcher for the project Dr. Piers Gooding. E: Ph: +61 3 8344 0910



‘What Making ofMurderer tells us about Disability and Discrimination in Criminal Law’ Piers Gooding, Anna Arstein-Kerslake, Louis Andrews, Bernadette McSherry, The Conversation 9 February 2016.

New project to tackle the detention of Aboriginal and Torres Strait Islander people with disabilities‘, Louis Andrews, Anna Arstein-Kerslake, Piers Gooding and Bernadette McSherry, Croakey, Wednesday 6 January 2016.


Please find the full paper below- 


Unfitness to Plead And Indefinite Detention Of Persons With Cognitive Impairments: Addressing The Legal Barriers And Creating Appropriate Alternative Supports In The Community