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InPsych 2015 | Vol 37

August | Issue 4

Cover feature : Assessment of capacity

Assessment of capacity in young offenders

Youth involved in the justice system typically present with a range of systemic issues that underpins their offending behaviour. They are often from the most disenfranchised and impoverished backgrounds that have been influenced by transgenerational trauma. Their individual needs are high and there are often multiple factors that increase their risk of reoffending.

The judiciary is interested in understanding mitigating factors associated with offending behaviour. Moreover, they may seek expert opinion from psychologists on a young offender’s cognitive, emotional and behavioural capabilities to guide and inform the likelihood of treatment response. There is an interest in identifying interventions that address complex issues related to mental health, welfare and substance abuse.

Typical referral scenarios

Phillip is a 13-year-old boy from a remote town, referred by his defence lawyer whilst on remand awaiting trial in relation to armed robbery charges. A report was requested to address possible Foetal Alcohol Syndrome (FAS), as well as his capacity to enter a plea and stand trial.

Robert is a 14-year-old Aboriginal boy with a history of birth trauma and learning difficulties, referred by his lawyer in relation to indecent dealing with a 5-year-old. A report was requested to assist with determining criminal responsibility or whether the defence of doli incapax (deemed incapable of forming the intent to commit a crime because of young age) may apply.

Andrew is a 16-year-old with severe traumatic brain injury and hearing impairment who has been charged with murder. An opinion was requested by the defence regarding his level of functioning, as well as ability to participate during a videoed police interview and give evidence at trial.

Practice and ethical considerations

These scenarios are multi-faceted, and require an understanding of the complex neuropsychological, clinical, forensic and educational implications of neurodevelopmental conditions, often within a cross-cultural context. Also required is an understanding of how trauma and disrupted attachment impacts on development. An appreciation of underlying legislation is necessary, as well as a range of key ethical issues which include limits to confidentiality, informed consent and assent, professional competence and scope of practice (see Bush, MacAllister & Goldberg, 2011).

Often psychologists will need to manage expectations from the judicial system that there is a ‘one size fits all’ approach to assessment (i.e., the assumption that all psychologists have the expert skills of a forensic psychologist or neuropsychologist). This is often not the case, and there is a risk that psychologists might unwittingly stray into territory that is beyond their level of expertise and training, with potentially significant adverse ramifications for the child as well as the court system.

This issue is highlighted in the above referral for assessment of an adolescent with possible FAS. The psychologist needs to be familiar with international diagnostic guidelines in which a neuropsychological assessment is part of a multidisciplinary approach with medical specialist input.

Similarly, there is the potential for an assessing psychologist to not properly understand the impact that birth trauma, a head injury, learning or language disorder has had on a child, and how this may have contributed to the alleged offences and ability to participate in the judicial process.

There are also important considerations regarding the disclosure of sensitive information during a forensic assessment, and providing feedback is usually contraindicated. For example, giving a diagnosis of FAS can have significant repercussions within a family system due to potential stigma, guilt and blame. Ideally, exploration of these issues should be done by a treating clinician.

Considerations for test selection and interpretation

The assessment should not be restricted to the administration of tests, but also relies upon multiple sources such as past reports, previous test scores, observation, and speaking with significant others. The focus should be on providing information most pertinent to the psycho-legal issue, with different goals than a typical clinical assessment. Experience with evidence-based methods to assess symptom validity is also imperative.

Cultural and language issues, and the availability of normative data, are often important factors, as they affect the choice of methods, interpretation and how the results are communicated. Thus with the Aboriginal child described above, a tailored battery of tests would be utilised focusing on non-verbal and more culturally valid measures. Seeking the advice of a cultural consultant would also be recommended.

Unfortunately assessment tools are often chosen because of their availability and lower cost. For example, whilst tests like the Wechsler scales (WISC-IV) are useful, they do not comprehensively assess all aspects of cognitive functioning (such as complex attention, learning, memory and executive functioning), and significant deficits in other domains could be overlooked if not incorporated into the test battery.

A further challenge for the psychologist is finding the language to translate results into reports that are easy to understand, with recommendations that are realistic and meaningful. Consultation with case managers in conjunction with their psychology counterparts is recommended where possible.


References and key reading

  • Bush, S. S., MacAllister, W. S., & Goldberg, A. (2011). Ethical issues in pediatric forensic neuropsychology. In B. L. Brooks & E. M. Sherman (Eds.), Pediatric forensic neuropsychology. Oxford: Oxford University Press.
  • Flower, T., & Gralton, E. (2011). The legal context for adolescents with developmental disabilities: An international perspective. In E. Gralton (Ed.), Forensic issues in adolescents with developmental disabilities (pp. 201-218). London: Jessica Kingsley Publishers.
  • Morgan, J. E. (2008). Noncredible competence: How to handle “newbies”, “wannabes”, and forensic “experts” who know better or should know better. In R.L. Heilbronner (Ed.), Neuropsychology in the courtroom (pp. 53-65). New York: Guilford Press.

Disclaimer: Published in InPsych on August 2015. The APS aims to ensure that information published in InPsych is current and accurate at the time of publication. Changes after publication may affect the accuracy of this information. Readers are responsible for ascertaining the currency and completeness of information they rely on, which is particularly important for government initiatives, legislation or best-practice principles which are open to amendment. The information provided in InPsych does not replace obtaining appropriate professional and/or legal advice.