Problem-Solving Courts

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.

Resources

Community Court, Darwin, Guidelines (2005)

Bartels L and Richards K, 'Talking the Talk: Therapeutic Jurisprudence and Oral Competence' (2013) 38 Alternative Law Journal 31.

Bartels L, ‘Mainstreaming Problem-Oriented Justice: Issues and Challenges’ in Marie Segrave (ed), Australia and New Zealand Critical Criminology Conference 2009 Conference Proceedings (Monash University, 2009) pp 31-40. Available at SSRN: http://ssrn.com/abstract=2188711

Bartels L, Challenges in Mainstreaming Specialty Courts. Trends and Issues in Crime and Criminal Justice No 383 (Canberra: Australian Institute of Criminology, 2009).

Blagg H, Problem-Oriented Courts (Law Reform Commission of Western Australia, 2008), http://www.lrc.justice.wa.gov.au/2publications/reports/P96-BlaggRP.pdf

Duffy J, ‘Problem-solving courts, therapeutic jurisprudence and the Constitution: if two is company, is three a crowd?’ (2011) 35(2) Melbourne University Law Review 394.

Freiberg A, 'Problem-Oriented Courts: Innovative Solutions to Intractable Problems'' (2001) 11 Journal of Judicial Administration 8.

Freiberg A, 'Innovations in the Court System' Paper presented to the conference 'Crime in Australia: International Connections', Melbourne, 29-30 November, 2004, http://www.aic.gov.au/events/aic%20upcoming%20events/2004/~/media/conferences/2004/freiberg.ashx.

Freiberg A, 'Problem-Oriented Courts: An Update' (2005) 14 Journal of Judicial Administration 178.

Hannam H, 'Problem Solving Courts and Therapeutic Jurisprudence in the Children's Jurisdiction' Paper presented to the 'Children and the Courts' conference, National Judicial College of Australia, 5 November 2005, http://njca.anu.edu.au/Professional%20Development/programs%20by%20year/2005/child%20conference/Hannam_Hilary.paper.pdf.

King MS, 'Problem Solving Court Programs in Western Australia' Paper presented to the 'Sentencing: Principles, Perspectives and Possibilities' Conference, Canberra, 10-12 February 2006,http://njca.anu.edu.au/Professional%20Development/programs%20by%20year/2006/Sentencing%20Conference/Sen%20conf%20papers%202006/king.pdf.

King MS, 'Problem Solving under the Dangerous Sexual Offender Act 2006 (Western Australia)' (2007) 14 eLaw Journal 32,  https://elaw.murdoch.edu.au/archives/issues/2007/1/eLaw_problem_solving.pdf.

King MS, 'What can Mainstream Courts Learn from Problem-Solving Courts'' (2007) 32 Alternative Law Journal 91.

King MS, 'Problem-solving Court Judging, Therapeutic Jurisprudence and Transformational Leadership' (2008) 17 Journal of Judicial Administration 155.

King MS, Solution-Focused Judging Bench Book (AIJA, 2009).

King MS, 'Judging, Judicial Values and Judicial Conduct in Problem-Solving Courts, Indigenous Sentencing Courts and Mainstream Courts' (2010) 19 Journal of Judicial Administration 133.

King MS and Duguid W, 'Geraldton Alternative Sentencing Regime: First Year Self- Evaluation' (Curtin University School of Business Law Working Paper 03:01, 2003).

King MS and Piggott L, 'Mirroring the Stages of Change in the Establishment of Problem Solving Courts' in Reinhardt G and Cannon A (eds), Transforming Legal Processes in Court and Beyond (AIJA, 2007) 161.

Lau T, ‘Protecting Procedural Fairness in Mainstreaming Problem-solving Courts’ (2010) Pandora's Box 41.

Law Reform Commission of Western Australia, Court Intervention Programs: Consultation Paper (LRCWA, 2008), http://www.lrc.justice.wa.gov.au/096-CP.html.

Law Reform Commission of Western Australia, Court Intervention Programs: Final Report (LRCWA, 2008), http://www.lrc.justice.wa.gov.au/2publications/reports/P96-FR.pdf.

Madell D, Thom K, Mckenna B, ‘A systematic review of literature relating to problem-solving youth courts’ (2013) 20(3) Psychiatry, Psychology and Law 412.

Nolan JL Jr, ‘The International Problem-Solving Court Movement: A Comparative Perspective’ (2011) 37 Monash University Law Review 259.

Phelan A, 'Solving Human Problems or Deciding Cases' Judicial Innovation in New York and its Relevance to Australia Part I, II and III' (2003) 13 Journal of Judicial Administration 98, 137 and 244.

Popovic J, 'Meaningful v Meaningless Sentences: Sentencing the Unsentenceable' Paper presented to the 'Sentencing: Principles, Perspectives and Possibilities' conference, Canberra, 10-12 February 2006, http://njca.anu.edu.au/Professional%20Development/programs%20by%20year/2006/Sentencing%20Conference/Sen%20conf%20papers%202006/Popovic.pdf.

Previtera T, 'Responsibilities of TJ Team Members v Rights of Offenders' (2006) 1 eLaw Journal (special series) 51, https://elaw.murdoch.edu.au/archives/issues/special/Responsibilities.doc.

Richardson E, Thom K and McKenna B, ‘The Evolution of Problem-Solving Courts in Australia and New Zealand: A Trans-Tasman Comparative Perspective’ in Wiener RL and Brank EM (eds), Problem-Solving Courts: Social Science and Legal Perspectives (Springer: 2013).

Turner S, ‘The New South Wales Youth Drug & Alcohol Court Program: A Decade of Development’ (2011) 37 Monash University Law Review 280.

Tinsley Y, ‘Increasing safety and improving healing: The potential of a specialist sexual violence treatment court’ (2013) 5(2) Sexual Abuse in Australia and New Zealand 31.

Walsh T, 'Defendant's and Criminal Justice Professionals' Views on the Brisbane Special Circumstances Court' (2011) 21 Journal of Judicial Administration 993.