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Forensic assessment of fitness to stand trial cases in India

Dr. Bhavika Vajawat discusses assessment and evaluation of fitness cases in India.
Hello everyone, Iam 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 today’s discussion, we will be discussing the assessment for fitness to stand trial and the method of preparing a report. The referral for fitness to stand trial is generally done by a magistrate and forwarded through the court or the in-charge police station. The question posed is whether the individual is fit to stand trial or not. But this assessment is generally done by a forensic psychiatrist.
But in a setting which does not have a forensic psychiatrist or the training for forensic psychiatry, any psychiatrist who has some training or no training in forensic psychiatry may provide the report. Now mere presence of mental illness is not sufficient to make an individual unfit to stand trial. It has been understood in the larger context that mental illnesses are quite prevalent in prisons, so any individual who has mental illness needn’t be unfit to stand trial. Also, there are several mental illnesses which do not really impair the rational thinking of an individual. Some of these illnesses are adjustment disorders, mild or moderate depressive disorders, substance use disorders, etc.
Hence it is essential to demonstrate that the mental disorder also affects the cognitive ability and rational thinking of an individual. A study reported that nearly all defendants who had been found unfit to stand trial had a diagnosis of psychosis. However, it also found that one-third of individuals who are fit to stand trial also had a diagnosis of psychosis. So a mere presence of a particular mental illness or a particular diagnosis does not make an individual unfit to stand trial or fit to stand trial. Let’s understand some of the common conditions associated with unfitness. These conditions can be broadly divided into conditions such as severe mental illnesses in the form of schizophrenia or dementia.
Then there are another set of illnesses or disorders related to cognitive functioning, which is the intellectual developmental disabilities commonly known as mental retardation in the legal construct. Now there are some other conditions, such as neurological conditions, for example, massive strokes which might impair the cognitive functioning of an individual, or conditions like delirium which are self-limiting. Now in all these assessments, one might also have to look and actively rule out the possibility of malingering, which is feigning of symptoms. In this assessment, one might also have to categorize whether this condition is reversible or irreversible.
Now there are some reversible conditions for which interventions are available, such as schizophrenia, delirium, mild intellectual disabilities, whereas there are some other conditions for which no interventions are currently available and hence an individual might be permanently unfit to stand trial. Some of these conditions are severe dementia or severe intellectual disability. Now let’s look at some of the essentials for this assessment. The evaluator has to familiarize themselves with some of the legal documents, like the first information report or the FIR, the charge sheet to understand the nature of the charges against the defendant. Also, he will have to familiarize himself and get collateral information from the family members, the investigating officer, as well as the lawyer.
He might also want to discuss with the lawyer about the specific problems faced by the lawyer or the individual’s inability to assist the lawyer. Now, this information is important to gauge the defendant’s understanding of the case. Now let’s move on to the components of assessment for fitness to stand trial. Melton et al., have outlined the essential components based on the US Supreme Court’s ‘Dusky competence to stand trial’ standard. These broadly include rational and factual understanding of the criminal process, as well as the defendant’s ability to assist his or her lawyer. There are several tools available to facilitate an objective and structured assessment for fitness to stand trial.
However, it is essential to know that most of these tools are devised for individuals who are not psychiatrists. None of these tools are validated for the Indian legal system, and none are considered gold standard. Now let’s discuss the assessment tools that are used in the Indian setting. Math et al., in 2011 devised a tool for the Indian setting. Now, this tool has five domains, namely cognitive functioning, understanding the charges, ability to follow the court proceedings, ability to help the lawyer to defend the case, and appropriate behaviour in the court. There are several advantages of this questionnaire. It is easily administered. It takes about 15 to 30 minutes to complete the assessment and it is free of cost.
The first domain is cognitive functions, which broadly assesses the orientation of the individual to the place, time and person. It also assesses the attention and concentration of the individual. Next is understanding the charges. The individual is asked about the charges framed against him, also about the nature of punishment for these judges. Understanding the court proceedings is the third domain. In this, we assess the individual’s understanding about his rights as an undertrial prisoner- who is the chief of the court, who has the authority to release him from the prison, and what does he mean by a witness. The fourth domain is the ability to help the lawyer. We ask the individual whether he has a lawyer.
What is the name of his lawyer if he has one? What happens if he does not have a lawyer, etc.? The fifth domain is the behavior in the court. We ask the individual, what must he do when the magistrate enters the courtroom? How will he address the magistrate? What should he do before answering the questions in the court of law? What happens if he behaves inappropriately in the court of law? Next, we move on to the interpretation of the assessment. Broadly, the defendant has to understand all the five domains that have been described in the questionnaire. However, he is not expected to have a perfect understanding of all the questions.
For example, he may not be able to list out all the rights of an undertrial prisoner as prescribed in the law. But he might broadly be able to say that he has a right to a fair trial. The question provided are only meant for guidance, and they can be tailored as per the defendant’s educational background and other patient and illness-related factors. A comment that I would like to make here is that it is generally easier to administer a witness to stand trial assessment, which is cross-sectional in comparison to insanity defense assessment, which is generally retrospective in nature and time-intensive. Let us discuss the setting of the assessment .
Now, this assessment for fitness to stand trial can be done either on an outpatient or inpatient basis. A simple examination and a simple assessment on an outpatient basis can easily tell us whether an individual is fit to stand trial or not. This would typically take a few minutes to hours. However, an inpatient assessment is preferred when on an initial assessment on the outpatient basis, the individual appears to have unfitness to stand trial. This admission would be warranted to ascertain the nature of the illness, the nature of the impairment, the reason for impediment to the adjudicating process, and identifying and implementing measures to restore this fitness.
It would typically take a few weeks, probably four to eight weeks, to complete the assessment and provide a prescription for treatment. At this point, I would like to differentiate incapacity from incompetence. Capacity is a medical construct. It is generally determined by a clinician, whereas incompetence is determined by the judiciary. Therefore, the final decision of whether the defendant is competent or incompetent rests with the magistrate and the report provided by the psychiatrist just helps in facilitating this decision.
In case of unfitness to stand trial, the following need to be mentioned in the report- the reason for unfitness, the diagnosis and the nature of interference in the defendant’s mental capacity to participate in the legal proceedings; restorability of the fitness; time required for such restoration. I would like to end my presentation here. In the subsequent video, I will be discussing the practical aspects of fitness to stand trial referrals in terms of their numbers, management, and the challenges associated with the assessment.

In law (s.328/329, Criminal Procedure Code, 1973), courts look at two kinds of mental health concerns: ‘unsoundness of mind’ and mental retardation (intellectual disability) at the time of trial to decide whether a person is fit to stand trial. How would you define ‘unsoundness of mind’ for the purposes of a fitness evaluation?

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Forensic Mental Health and Criminal Justice

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