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 (UoM)); CI, Professor Kerry Arabena (Chair of Indigenous Health, UoM); 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, UoM) and Post-Doctoral Research Fellow, Dr Piers Gooding (Melbourne Law School, UoM), Research Assistant, Louis Andrews (UoM) and Research Assistant, Dr Ruth McCausland (UNSW).

For enquiries, please contact Dr. Piers Gooding. E: p.gooding@unimelb.edu.au Ph: +61 3 8344 0910


New project to tackle the detention of Aboriginal and Torres Strait Islander people with disabilities‘, Croakey, 6 January 2016

What Making a Murderer tells us about disability and disadvantage in criminal law‘, The Conversation, 9 February 2016.

Disability-based disadvantage – a life sentence?‘ Pursuit, 4 April 2016.


Submission to Senate Community Affairs References Committee inquiry on the indefinite detention of people with cognitive and psychiatric impairment in Australia, 21 March 2016. (See also the transcript of evidence provided by Dr Anna Arstein-Kerslake for the Committee’s hearing in Melbourne on Friday 29 April 2016).


This project is jointly funded by Commonwealth, state and territory governments under the National Disability Special Account, administered by the Department of Social Services on behalf of the Commonwealth, state and territory Research and Data Working Group.


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