Problem-solving courts originated in the United States with the establishment of drug courts and domestic violence courts. Since then, a large range of problem-solving courts have been established, including community courts, drug courts, domestic violence courts, DWI (driving whilst intoxicated) courts, mental health courts, tribal drug courts and courts dealing with the substance abuse problems of parents of children at risk. There are also courts that are taking a hybrid approach, assisting people with more than one offending related problem.
Problem solving courts were introduced into Australasia in the 1990s. Family violence courts operate in Australia and New Zealand. Drug courts have been established in New South Wales, Queensland, South Australia, Victoria and Western Australia. There are mental health court programs in several jurisdictions. The Geraldton Alternative Sentencing Regime in Western Australia is a hybrid program working with participants with a range of offending related problems and often with more than one problem. It has assisted participants with problems such as licit and illicit substance abuse, family violence, gambling and stress.
Key elements of problem-solving court programs that distinguish them from mainstream courts include: seeking to address all the underlying issues rather than simply focusing on the legal problem; judicial case management; a multi-disciplinary court team; a collaborative approach with participants; involvement of government and community agencies in the development and running of the project; and the use of therapeutic legal processes by the court and team members. However, there is wide variation between problem-solving courts as to the extent to which these elements are present in practice.
There is general acceptance that therapeutic jurisprudence has become the underlying philosophy of these courts. It suggests processes that court team members can use to promote the therapeutic outcomes of the court. Again, there is wide variation between courts as to the use of therapeutic legal processes.
A critique of problem solving courts suggests that the concept of the court as problem solver is inappropriate and does not reflect best practice in therapeutic jurisprudence. According to this critique, the key change agent is not the court but rather it is the individual whose problem is to be solved. Often participants in problem solving court programs will have initiated change before coming into a problem solving court, may develop and apply change strategies while in the court program and may need to continue to apply change strategies after completing the court program. It has been suggested that these courts should be solution focused courts, supporting participants' change mechanisms and facilitating their engagement in appropriate treatment and support services to address their underlying issues. A solution-focused approach is markedly different from a problem solving approach not only in conceptual terms but also in how judicial officers, lawyers and other professionals involved in the court program carry out their work. This critique is discussed further in a recent article and in a forthcoming chapter.
Drug courts help participants address their underlying illicit drug problems with the aid of a court team and community agencies and with ongoing judicial case management, which can be for more than a year. Some courts will also assist in relation to alcohol problems alone or when the participant has both alcohol and illicit drug problems. Drug courts offer community or residential based rehabilitation - sometimes in custody - and work collaboratively with community and justice agencies to promote this service. Drug courts often use a system of sanctions and incentives to promote participant compliance. A breach point system is one mechanism they use for promoting compliance. Graduation ceremonies, the use of applause in court to recognise participant achievement and the use of behavioural contracts are also common features of drug courts.
Family Violence Courts
Family Violence Courts use a system of judicial monitoring, participant engagement in family violence perpetrator programs and case management by a multi-disciplinary case management team to promote perpetrator accountability, prevent the recurrence of family violence and protect victims.
Mental Health Courts
Mental health courts connect defendants with mental health problems with appropriate treatment and support resources within the community and seek to promote their engagement in the treatment programs. Proper assessment of participants' needs and the development of a treatment plan accordingly are features of these programs. Mental health court participants often also have related problems such as homelessness and substance abuse problems.