Challenges and concerns

Hello everyone, I am Dr. Bhavika Vajawat, I am working as a senior resident in forensic psychiatry at the National Institute of Mental Health and Neurosciences, NIMHANS Bangalore. In this lecture, I will be discussing the practical aspects of fitness to stand trial referrals in terms of their numbers, management and the challenges associated with such assessments. Now, in the US, there are about 60000 competency cases per year, with rates of incompetency falling between 20 to 30 percent as per Melton et al. He also commented that when extrapolated from the numbers of actively psychotic and mentally ill prisoners, the potential number of competency evaluations could easily be twice this estimate. But let us discuss the experience from NIMHANS.

Kumar et al., in 2014 did a study on male forensic ward patients. The sample size of this study was 135 and it was a five-year study. Out of the 135, twenty eight individuals were given the certificates for fitness to stand trial, out of which 57.1% were certified fit to stand trial while the rest were unfit to stand trial and the most common diagnosis in this sample was psychosis, including schizophrenia. There is another study, which is an unpublished study from NIMHANS, which looked at 125 male patients charged under section 302 of the IPC with the diagnosis of primary mental illness. In this study, fitness to stand trial certification was done for twenty-five i.e.

20% of the patients, and out of these, twenty were deemed fit to stand trial. Five patients were unfit to stand trial and the distribution of diagnosis of these five patients were as follows. Three had schizophrenia, one had severe intellectual disability, and one had schizophrenia with comorbid severe intellectual disability. Having looked at the numbers, we now move on to the methods of restoring competence. There are several methods that can be used to restore the competence of an individual. This could be by means of using pharmacotherapy in the form of medications, especially in cases of severe mental illnesses like schizophrenia, psychosis, not otherwise specified, bipolar illnesses, depression, etc.

There are certain psychosocial interventions that can be used in the form of cognitive retraining in patients with cognitive deficits, social skills training in patients with schizophrenia, and so on. Legal counselling can be provided in which the defendant can be educated about the legal proceedings, please, charges, on how to assist the lawyers, using a variety of individual or group activities like role plays in courtroom settings. These are essential methods of restoring fitness in individuals with mild cognitive impairment like mild intellectual disability. Now let us move on to the challenges faced in fitness to stand trial assessments.

Firstly, I would like to re-emphasise that there are no validated tools for the assessment and therefore no standard methodology used for reporting in the country. Fitness to stand trial is dynamic in nature, an individual might be fit to stand trial today, but he might lose capacity in a matter of few days, months or years. However, there is a significant lag in individuals being produced for trials, and therefore an individual who might be fit to stand trial in the in-patient assessment might lose his capacity by the time the court trial begins. There are no differential assessments for fitness to stand trial for individuals with intellectual disability and those with unsoundness of mind in the Indian setting.

There are certain ethical dilemmas associated with interventions aimed at restoration of competence for the purpose of trial in individuals who are unwilling for those interventions. There are also practical challenges faced when the individual has amnesia for the crime i.e. when he does not remember about the crime. A refusal to participate in competence assessment is also a major hurdle. Also, a lack of psychologists trained in forensic psychiatry in the Indian setup. These are some of the approaches that are used to tackle some of these hurdles. First, when there is amnesia for the crime, it is understood in principle that amnesia about the alleged crime is not a ground for unfitness.

In such cases, the patient’s learning about the case from an external person is gathered. Example- Why did the police arrest you? What did they say about the charges framed against you? Next is the refusal to participate in the assessment. This refusal by itself does not mean incapacity. In such cases, we identify objective causal evidence to relate or rule out non-cooperation due to mental illness and the possibility of malingering. I would end my presentation here. Thank you.