Ethical Considerations for Duty Lawyers representing Mentally Impaired Persons
Introduction
Many of the alleged offenders who approach a Duty Lawyer suffer from a mental
impairment.1
This paper considers how to resolve some of the ethical dilemmas facing duty lawyers
when representing mentally impaired persons.
Interaction of fundamental human rights and disability rights
An impaired person’s disability rights ought not to restrict that person’s fundamental
human rights. Absent a formal decision that an impaired person lacks capacity to deal
with his or her legal affairs, such persons have the same rights as others to make
fundamental decisions.2
That a defendant presents with a mental impairment does not determine that he must
have his case dealt with by primary reference to his impairment, or beyond the criminal
justice system. 3
The fundamental determinant of your ethical position as a duty lawyer is your client’s
decision-making capacity
For the purposes of this discussion, the Writer defines “mental impairment” to include a clinically
significant intellectual or cognitive impairment, or a mental illness. Very recent statistics hold that
about 38 percent of sentenced prisoners in New South Wales suffer some form of mental illness,
and that 20 percent suffer intellectual disability. The figures for the Queensland inmate population
are likely similar.
1
2
See United Nations Principles for the Protection of Persons with Mental Illness and for the
improvement of Health Care; United Nations Convention on the Rights of Persons with
Disabilities.
3 “His” = “his or her”.
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If you suspect that your client is impaired, ask him if he enjoys assistance from a service
provider, such as:

Department of Health: he may indicate that he has a case manager or a doctor
helping to manage, treat, or care for his mental health or intellectual impairment;

Office of the Adult Guardian: a guardian may have been appointed as his substitute
decision-maker; or

Disability Services Queensland, or a service-provider funded by it: who help to
fund housing and support for intellectually impaired persons.
Your professional options are limited when representing impaired persons falling into
either of the following categories:

Those subject to orders placing the Office of the Adult Guardian as a decision
maker for legal affairs. If your client is subject to such an order, you must yield to
the authority of such Office, if only by ensuring that it is engaged in the right to
assist your client to make a decision affecting his case.4 To be so engaged, it must
be advised of your client’s present attendance before the court. To proceed to
deal with the case of an impaired client who enjoys the protection of a
guardianship order without making every reasonable effort to enjoin the
guardian in the case is unethical: as you are proceeding to deal with a case
without attempting to secure the most complete instruction.5
The Guardian may provide instructions to you about how the case ought to
proceed. If those instructions do not conflict with your client’s instructions, and
your own considered view of how the case ought to be conducted, you ought to
follow the Guardian’s instructions. If you strongly disagree with the Guardian’s
position, and your client does too, you may politely express your reasons for so
4
5
See Guardianship and Administration Act 2000
LSC v Anderson [2009] LPT 1
2
doing. However, if the Guardian does not alter its view, then the Guardian’s
position applies to determine the course the case ought to take that day.

Those subject to an Involuntary Treatment Order or a Forensic Order under
Chapter Seven, Part Two, Mental Health Act 2000 [“MHA”]. Such a defendant’s
case cannot proceed until certain measures have been formally undertaken
pursuant to the MHA. You cannot act for him if he instructs you to enter a plea
and dispose of the case that day, notwithstanding his apparent capacity.
However, you may apply for bail for him.
The tests describing the minimum legal capacity required to participate in criminal
proceedings as a defendant
Assuming that your best inquiries have not revealed that your right to act is restricted
by statute, after concluding that your client is impaired, you must determine if the
impairment itself restricts your capacity to receive or effect your client’s instructions.6
The guide to determining your client’s level of capacity is the Presser test, as modified
and supplemented by more recent case law and statutory authority.7
Presser requires the ability:
(1) to understand the nature of the charge;
(2) to plead to the charge and to exercise the right of challenge;
(3) to understand the nature of the proceedings, namely, that it is an inquiry as to
whether the accused committed the offence charged;
(4) to follow the course of the proceedings;
Here, “impaired” means intellectually impaired or mentally ill - the writer assumes that the duty
lawyer will observe sufficiently to rule out other sources of impairment to providing sensible
instructions, such as emotion, a personality-driven tendency towards obstruction, or intoxication.
7 R v Presser [1958] VR 45. See also the definition in the Mental Health Act 2000.
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(5) to understand the substantial effect of any evidence that may be given in support of
the prosecution; and
(6) to make a defence or answer the charge.
The test must be understood in the context of more recent authority.
First, the test needs to be applied, “in a reasonable and common sense fashion”. Presser
does not require sufficient capacity to make an able defence: Kesavarajah v The Queen
(1994) 181 CLR 230, at 244-5.
Second, fitness is assessed considering the likelihood that the defendant will be
represented by counsel: R v Ngatayi (1980) 147 CLR 1, at 9.
Third, fitness is assessed considering whether court proceedings might be specially
configured to accommodate your client’s level of disability: R v M [2002] QCA 464.
Therein, de Jersey CJ noted that the public interest in securing finality in litigation may
well converge with the need to allow an impaired person to enjoy their fundamental
human right to trial:
[15] To deny a person like this appellant a trial would, having regard to both his interest
in responding to the charge and possibly having his name cleared (while acknowledging
of course that he bears no onus), and the interest of the community in ensuring that
criminal charges are properly pursued, be frankly inconsistent with the rule of law,
essentially because it would be discriminatory. Contemporary courts are sensitive to the
varying needs of those who come before them.
Applying the legal tests to determine if your impaired client is fit for trial or sentence
Not all impaired persons are unfit. Some may be so impaired to be unable to
meaningfully participate in the most basic of proceedings for the most basic of offences;
4
while others may have a less imposing impairment and thus be able to participate in
matters of greater complexity.8
You must try to determine which side of the ledger your client falls on. A way to start is
to ask simple non-leading questions and determine if your client can demonstrate a
proper appreciation of his current life circumstances, and particularly, the circumstances
which led to the charge he faces.
Second, take him through the Presser criteria.
Ensure that he satisfies a Presser criterion before moving to the next.
Asking non-
leading questions, allowing him time to explain his position. If in any doubt about his
level of capacity on any given criterion, politely ask the question in as many different
ways as possible until you are clear.
“Able to understand what it is that he is charged with”
This involves a basic understanding of the essential facts of the charge and the elements
of the offence. Questions like this may be suitable:
“Do you know what the police say that you did?”
“What do the police say you did?”
“Do you know that you are charged with?
“What are you charged with?”
If he can answer such questions, ask him more specific questions about the alleged
offence. Consider that he may have an understanding that he has done something wrong,
but no proper understanding of the degree of wrongness which the police allege. That is,
8
See R v AAM; ex parte AG (Qld) [2010] QCA 305. The defendant suffered mental retardation,
being in the bottom percentile of population IQ.
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he may not appreciate that the police allege he has committed a more serious charge
than he thinks he has committed.
“Able to plead to the charge and to exercise his right of challenge”
He must demonstrate that he knows that a plea of guilty expresses to the world that he
accepts that the essential facts and elements of the offence are established. A question
like this may be a suitable opening:
“Do you agree or disagree with what the police say that you did?”
“To understand the nature of the proceedings, namely, that it is an inquiry as to whether he
committed the offence charged”.
He must demonstrate awareness that he is engaged in a formal judicial process
inquiring into his responsibility for the matter alleged. He needs to have an awareness of
the potential consequences of that process on him.
“Able to follow the course of proceedings so as to understand what is going on in a court in a
general sense, though he need not, of course, understand the purpose of all the various court
formalities”
He must be able to follow the logistic journey involved in the proceeding and the roles
each of the participants play.
“Able to understand the substantial effect of the evidence that may be given against him”
He must be aware of the implications of the prosecution evidence. For example, he must
be aware that if a Crown witness alleges he was at a place at a particular time, that such
may infer he had opportunity to commit the crime.
“Able to make his defence or answer to the charge”
He must be able to give the court a basic version of the facts as he claims them to be, if
necessary through his lawyer. Thus, he needs to be able to enter the witness box and
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respond to questions in chief, and under cross-examination. To do so he must be capable
of recalling evidence he might have given earlier in his testimony, or questions he was
asked earlier.
This criterion also demands that he have sufficient capacity to decide what defence he
will rely upon. A mentally ill defendant may lack insight into his illness. If a mental
health defence is open to him, his lack of insight may so deprive him of capacity to
decide upon whether to pursue that defence that he will be unfit.
“Fit for trial” is further defined by the Mental Health Act 2000 to include ability to endure
a trial without serious adverse consequences to one’s mental condition becoming likely.
If by reason of his impairment he is likely to be come unfit by some point in the trial, he
is unfit per se.9
In a given case, there may be a difference between fitness for trial and fitness to plead
A client may be fit to plead guilty and meaningfully take part in ordinary sentence
proceedings, and yet be unfit to plead not guilty and stand trial on the charge.
Presser expressly refers to fitness to be tried. If any one of the Presser criteria is not met
then the defendant is unfit to be tried.
However, Presser criterion six invokes consideration of the trial process, and not the
ordinary sentencing process. In a trial, the defendant must respond within a dynamic
process which may evolve in unexpected directions. He must do so either directly,
through his own answers as a witness, or indirectly, through his instructions to his
lawyer.
9
See Schedule Two, MHA. See also Kesaverajah, supra, at 246.
7
It is submitted that, given a careful assessment that the defendant satisfies the first five
Presser criterion, a defendant may be fit to plead guilty to a particular charge,
notwithstanding that he may be unable to satisfy criterion six.
The need for careful written instructions before conducting a plea of guilty for an
impaired person
Before you conduct a plea of guilty on behalf of a client after you had cause to
investigate his fitness, ensure that you are able to support your conclusion that he is fit
to plead guilty. You will need written instructions to do so. Such might include:
1. how long your conference took;
2. why you believed the defendant may be impaired;
3. how you inquired about whether the defendant had a statutory decision maker;
4. each of your Presser assessments;
5. that he understands that you were mindful that his fitness may be an issue, and
that you investigated that matter with him;
6. that he understands that the matter of his fitness may have afforded ground for
him to adjourn the case to make a fuller assessment of that issue, if merely to
obtain information to help him in mitigation;
7. that he has carefully considered the matter of his fitness to plead;
8. that he was allowed time after your conference to consider your advice and his
discussions with you about the benefits and disadvantages of proceeding today
to a plea of guilty;
9. that he understands that if he enters a plea of guilty to the charge today, he will
hold out to the world thereafter, that he has committed the offence charged;
10. that he understands the grave difficulty in overturning a plea of guilty;
11. that he has carefully decided that he wishes to finalise his case today by a plea of
guilty;
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12. that he was in no way pressured by you to one conclusion or another, be it
finalising the case today by a plea of guilty, or adjourning the case for further
investigation;
13. his reasons for dealing with the matter today;
14. that he has expressly waived his right to adjourn the case to obtain more
evidence about the fitness issue;
15. that he is plainly and unmistakably clear, that he wishes to enter a plea of
guilty;10 and
16. that he wishes you to represent him on his plea of guilty.
When you believe the defendant is not fit, but he insists on pleading guilty that day
Ask him to reconsider adjourning the case, if only to allow him to obtain more material
about his condition for support in a plea in mitigation.
However, when so doing, recall that an impaired person has the same fundamental right
as you. He is entitled to be a person in court, and not merely a patient, or an individual
under care. He may have very sound reasons to insist on pleading guilty and disposing
of the matter that day. For example, he may not wish to be secured to the mental health
system. A probation order with a special condition may do so. Alternatively, he may not
wish to delay finalising the matter, even by way of investigation into his fitness. Or, he
may believe that the very process of defending the charge may apply undue pressure on
his mental health. Or finally, aware that his condition is a source of mirth to some and
disgust to others, he at every turn seeks to avoid formal confirmation of it.
However, your position is clear. Should you form any real and substantial doubt about
the defendant’s fitness to plead, you cannot conduct a plea on his behalf. If you have
communicated your concerns to the defendant, and he insists on pleading guilty, you
10
See R v Golothan (1915) 24 Cox CC 704
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cannot act for him by representing him on his plea, lest you breach a fundamental
ethical duty to the proper administration of justice.11
That is because a reasonable doubt about someone’s fitness invokes fundamental doubt
about the justice of the legal process in which the person is involved.12 It is a “cardinal
principle” of our law that no person can be tried for a crime unless he is in a mental
condition to defend himself.13 If the court is made aware by any information whatever,
conveyed to it from any quarter, that there is an issue about the defendant’s fitness, it is
the court’s duty to see that such issue is tried. This is so even if there is no application for
same by either prosecution or defence.14
What else must you to do in such circumstances?
While you must refrain from taking further instructions and acting for him on the plea,
you may, and ought to, advise both the prosecutor and the court of your reasons for
concern about the defendant’s fitness.15 In such circumstances, considering the substance
of the issue, your overriding duty to the court and the administration of justice survives
the termination of your lawyer/client relationship.16
See Barristers’ Rules 2007, number 5:
Barristers should exercise their forensic judgments and give their advice independently and for
the proper administration of justice, notwithstanding any contrary desires of their clients.
See also Solicitors’ Rules 2007, “Object of rules”:
The object of these rules is to ensure that each solicitor:
(i) acts in accordance with the general principles of professional conduct;
(ii) discharges that solicitor’s obligations in relation to the administration of justice; and
(iii) supplies to clients legal services of the highest standard unaffected by self interest.
See also Eastman v The Queen (2003) 203 CLR 1, per Hayne J at paragraph 294-297. note that
the court in AAM; ex parte AG (Qld) [2010] QCA 305, at paragraph [12], endorsed Hayne J’s
reasoning in Eastman, supra.
12 Eastman, ibid.
13 R v Dashwood [1943] 1 KB 1
14 Presser, supra, at p 46, cited with approval by the court in R v Enright [1990] 1 Qd R 563. note
that if there is any doubt, the trial cannot proceed. Such has long been the law: see Hale's Pleas
of the Crown, vol. 1, p. 34. Such was so, because a defendant could not be dealt with or
executed unless he was in a fit condition to repent and confess his sin. See also R v Podola
[1960] QB 325, at 336-7.
15 See Reference 9, above
16 Inquiry under s 475 of the Crimes Act 1900, into the matter of fitness to plead of David Harold
Eastman - Report by the Honourable Acting Judge Miles AO, 6/10/05. The Ethics committee of
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In raising the issue of fitness in such circumstances, you must explain the basis for your
belief that the defendant may be unfit.17
Note that ss 60-63 MHA allows a District or Supreme Court to in certain cases reject a
plea of guilty from an impaired person, substitute a plea of not guilty, and direct the
case to the Mental Health Court for determination. However, such power is presently
unavailable to Magistrates. Thus, you must ensure that the Magistrate is aware that he
or she ought to refuse to accept the defendant’s plea if doubt about the defendant’s
fitness remains after judicial enquiry.18 If the Magistrate appears unconvinced about the
Court’s duty, hand up a copy of each of Presser, supra, and Enright, supra, and refer the
Magistrate to Presser at page 46 and Enright at page 58.
A defendant’s refusal to argue the defence of insanity in the face of evidence
suggesting that the defence is open
The police material may indicate that an insanity defence may be open to the defendant.
However, the defendant may at once appreciate that he may pursue that defence, but for
his own reasons refuse to do so and instruct that he wishes to enter a plea of guilty.
When the charge is more than trivial, you may wish to strongly advise him to exercise
reserve before entering such a plea, and thus, that he ought to consider having the case
adjourned.
However, provided he is fit for sentence, you may enter a plea for him. Naturally, it is
imperative that you advise him of the benefits and disadvantages of adopting one
the Victorian Bar Association has also endorsed this approach: see Victorian Bar News No. 142,
Spring/Summer 2007, p 10.
17 See Hayne J in Eastman, supra; Eastman Inquiry, and the remarks of Spigelman CJ in R v
Mailes (2001) 53 NSWLR 251, at para [11].
18 Presser, supra, at 46; Enright, supra, at 58.
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course or another, before taking careful written instructions if he still insists upon
pleading guilty.
Scenarios
Mr. White is charged with assault occasioning bodily harm. He is in custody. He has
some criminal record for offences against the person, and may struggle to get bail. The
assault alleged will not likely attract more than a fortnight of jail after sentence. If he
adjourns the case he’ll not reappear for a month.
You determine that Mr. Smith was at one time subject to a Guardianship Order; but he
insists that he is no longer. Mr. Smith seems to appreciate the nature of his charge, and
the concept of a plea to the court. However, he is unable to fully understand the role of
the prosecutor or the defence lawyer, or the court process. He insists on entering a plea
of guilty today, “To get out of here”.
What do you do?
Would it make a difference if he was not in custody?
Mr. Brown informs you that he is charged with stealing a 20 cent Bic pen from Woolies.
The principal Crown witness informs that at the time she observed Mr. Brown clumsily
place the pen under his shirt and shuffle off, he grimaced, turned, and loudly ranted,
“My God, my eternal God, and only my God” before muttering something like, “My
pen, my Pen, and only my Pen”.
The alleged offence occurred a month ago, just after Mr. Brown failed to attend to
receive his fortnightly depot antipsychotic medication from his doctor. Soon after the
alleged offence, he recommenced his depot, and when he attends upon you he is lucid
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and succinct, with no sign whatever of an illness or lack of capacity of any kind. He
appears by summons.
Mr. Brown is insightful into his illness, and so is not on an involuntary treatment order
pursuant to Chapter Seven, Part Two, MHA.
He passes the Presser test with flying colours, before insisting that he wants to enter a
plea of guilty, “right now, Youngster, today!”. The prosecutor, unmoved by your client’s
obvious mental illness and all the impositions it brings, insists that the charge will
“never be discontinued.”
What do you do?
Mr. Silver is charged with drink driving. He speaks of his bi-polar disorder, and of
successfully medicating it.
After sensibly confirming that he is fit to plead, you sign him up [you happily note that
he is “fine”], and go into court with him [“still fine”]. You have the court take his plea of
guilty [clearly spoken, he is coping well; no doubt you were right to proceed]. The police
case is spoken, and you commence to speak to the mitigating factors. Quietly, he begins
muttering about stress, pills and his brother. Then he starts sobbing, and shaking, until
soon, when at last you dare to look around, he seems on the point of collapse. You stand
the matter down to take instructions, but Mr. Silver informs you that he wants to
proceed to, “get it all over and done with”. His physical condition continues to decline.
What do you do?
Acknowledgements
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I am very grateful to have attended the Public Defender’s Conference in Sydney this
year, where Chris Bruce SC, Public Defender, New South Wales Public Defenders’ Office,
presented an informative paper entitled “Ethics and the mentally impaired”. Chris was
pleased for me to apply some of his thoughts in my paper.
I am also indebted to the Queensland Law Society, and in particular Neil Watt, Senior Ethics
Lawyer, for directing me to materials which enhanced my understanding of this area.
Finally, the excellent staff of Legal Aid Queensland’s Mental Health Section has as always
provided support, input and wisdom.
Joe Briggs
Counsel
Legal Aid Queensland
28 March 2011
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