Fitness to stand Trial

Dr Shailesh Kumar
Consultant Forensic Psychiatrist and
Hon Clinical Associate Professor
University of Auckland FRANZCP,
FRCPsych, MPhil, MD, DPM Dip CBT
What will be covered
 History
 Current literature-
medical and legal
 Practicalities
 History
 Medieval Courts: ability of an offender to
defend against accusers
 Fundamental precept of common law: No
person can be tried unless in a mental
state to defend
 Raised by either party or by court
 Must be resolved at the time it is raised
 Non adversarial : onus of proof, doesn’t
involve any issues joined between parties
 History
 Medieval and Tudor: defendants refusing
to plead
 1275: mute of malice or mute by the
visitation of God
 Peine forte et dure -abolished in 1772:
standing mute deemed confessed
 1736: Sir Mathew Hale: absolutely mad
should not be arraigned during his
phrenzy until his incapacity was cured
 R v Pritchard 1836
 Whether the prisoner has sufficient
understanding to comprehend the nature of trial,
so as to make a proper defence to the charge:
 Whether the prisoner is mute of malice
 Whether he can plead to the indictment or not
 Whether he is of sufficient intellect to comprehend
the course of proceedings on the trial so as to make a
proper defence to know that he might challenge any
of you to whom he may object and to comprehend
the details of the evidence
Current literature-Medico Legal
aspects
 Normative or legal
underlying principles of
state sanctioned
coercive intervention
that prohibit the trial of
incompetent persons.
 Clinical : degree of
functional impairment
affecting decision
making capacity
Presser standards: Min stds to ensure
fairness and justice
 To understand the nature of the charge
 To enter a plea or the right to challenge
the jurors
 To understand the nature of the trial
 To follow the course of the trial
 To understand the substantial effect of
evidence
 To give instructions to the lawyer
 Decisional competence
 A defendant who is provisionally
competent to assist counsel may not be
competent to make specific decisions that
may be encountered as the process
unfolds.
 Understand, appreciate and rationally
process alternative courses of action and
reasoning and to express a choice among
alternatives
 Trial competence
 Understand the course of the proceedings
at the trial so as to make a proper defence
 Understand the substance of the evidence
 Give adequate instructions to counsel
 Plead with understanding to the
indictment
Comprehending the proceedings
 Comprehend to
defend: not quality of
evidence or capable
of making choices
 Low threshold in NZ
 Impressionistic
considerations
 Mental disorders and mental
impairment
 Anyone unable to participate in court
proceedings
 Implications for disposal
 Understand role in the proceedings
 Understand the nature or object of the
proceedings
 Capable of instructing counsel
 Communication with counsel
 “Adequately”: qualitative not literal-
possible even if lying
 If able to participate in a meaningful way
and amicable relationship exists then
cooperation and best interest decision
unimportant
 Threshold for competence to participate in
proceedings or to instruct counsel is low
Legal Implications
 Burden of proof
 With the party
asserting unfitness
 For defence -On civil
standards of balance
of probabilities
 For prosecution:
Beyond reasonable
doubt
 Charging & Incompetence
 Basic ability to understand legal rights and
reliability of statement made to the police
 Diversion as a 1st step
 Trial preferred option for permanently
incompetent
 Contested issue: to give evidence, mental
age, appropriate adult, plea bargaining
 Clinical Aspects
 Assessment
 Writing Report
 Hearing
 Treatment
 Assessment
 Inform about the role, purpose, consequences and
confidentiality
 Not mental state at the time of offending
 Unfit to stand trial in relation to a defendant
 a) means a defendant who is unable due to mental
impairment to conduct a defence or instruct counsel to
do so
 b) and includes a defendant who due to mental
impairment is unable to plead adequately, understand
the nature or purpose or possible consequences of the
proceedings, to communicate adequately with counsel
for the purposes of conducting a defence
 Key aspects
 Understand the
 current legal situation.
 charges.
 facts relevant to case.
 legal issues and procedure in
his/her case.
 legal defences available
 dispositions, pleas and
penalties possible.
 To appraise the
 likely outcomes.
 roles of defence counsel, the
prosecuting attorney, the
Judge, the jury, the
witnesses and the defendant.
 witnesses.
 Tasks- to
 relate to defence counsel.
 trust and to communicate
 comprehend instructions.
 make decisions after
receiving advice.
 maintain a coll. relationship
 follow testimony
 testify - cross-examined
 challenge prosecution
witnesses.
 Behaviour and motivation
 Unmanageable behaviour.
 disclose to lawyer facts
 Self-defeating/serving
motivation.
 Report
 Usually before plea
 Better to exclude
detailed alleged
account of offending
but can be done
 Risk assessment
Hearing
 Trial not always the
best option
 Deferring adjudication
 Expert vs Jury
 Treatment Issues
 Common conditions
 Legal implications-
innocence deprived
competency
restoration
 Use of MHA
 Special therapies