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Assessing an accused for unfitness in Victoria

Dr. Danny Sullian discusses the assessment of unfitness of an accused and the role of an expert in such cases.
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I’m Dr. Danny Sullivan on the executive director of clinical services at Forensicare, which is the Victorian Institute of Forensic Mental Health. I’m a consultant, forensic psychiatrist by training. The question of fitness to be tried relates not to the conduct at the time of the offending behaviour, but rather at the time that a person is to stand trial. So rather than relying on the brief of evidence, the assessment of the patient should take place as close as possible to the trial. The assessment involves once more a clinical interview. It may involve in some situations cognitive testing by a psychologist to determine a person’s intellectual level. It involves the exploration of the person’s capacity to meaningfully participate in the trial.
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In assessing a person’s fitness to stand trial, I am once more, looking for the presence of a mental disorder which might cause problems at trial. And in general, those mental disorders fall into three categories. The first of them is cognitive impairments, such as intellectual disability, dementia or severe brain injury. The second of those is psychotic illnesses where a person’s untreated illness causes them to be so affected by symptoms that they can’t actually participate meaningfully, can’t concentrate, or have a disordered appreciation of what is occurring in court.
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And the third is in the realm of personality disorder, where a person’s conduct in court or the reasons that they’re participating are, in fact, at odds with the purpose of the court of law. In the case of cognitive impairment, the person’s ability to follow the course of a trial and in fact, even to understand what is happening in a trial is so severely impaired that they really can’t participate in the trial. Therefore, the common law regards them as being an unworthy vehicle to subject to a trial and indeed then relies upon other forms of assessment of what happened.
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For a person to be found unfit to be tried, there must be an objective correlation with some form of mental disorder, and then the specific tests for unfitness are applied in sequence. In common law jurisdictions, these often hail from previous precedents which have set out the tests- judge made law in which judges have gone through a series of criteria which they have considered determines whether or not a person can participate meaningfully. In general, those tests involve an understanding of legal process, but of course, people aren’t expected to be legal experts. The understanding is fairly rudimentary.
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That can include, firstly, the understanding that it is a trial, that is that, the process that is engaged in in court is an investigation into the facts of whether or not the person committed the offense as charged. It involves an understanding of the substantial effect of the evidence. That is an appreciation of the general nature of the evidence that might be provided against them. And this, of course, allows an accused person to interact with their lawyer and provide contrary information. So, for instance, they can say- this eyewitness account was untrue because of the following reasons. I wasn’t there. He mistook who I was or he had a reason for saying that because he wants to get back at me.
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In all of those situations, the accused person is able to interact with the evidence fairly in a way which helps their legal representative.
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In terms of fitness to be tried, there must be an understanding of what a plea means, what it means to plead guilty or not guilty. One can’t simply plead guilty on the expectation that the doors of prison will spring open and that one will be freed. One must have a pragmatic understanding of the consequences of a guilty or of a not guilty plea. In some jurisdictions, the test involves an understanding of how the jury functions. And again, if there is a jury trial, the understanding doesn’t have to be that of a legal expert.
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But it must be a general understanding that a jury is a body of peers, of people who have no interest in the outcome of the case and whose job is to hear the evidence and to make a decision. In addition, there are tests related to a person’s participation during the trial. That can include following the course of the trial, listening to the evidence, being able to instruct one’s legal representative. So as an example, a person with a cognitive impairment whose memory is impaired significantly, who may have short term memory deficits or the inability to recall information they heard one minute ago, he’s going to struggle to listen to long sentences like this and make sense of them.
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They’re not going to be able to listen to an hour of legal argument and pick out the elements which are reasonable to discuss with their legal representative later. That is, they won’t be able to follow the course of a trial. Similarly, people through severe mental illness may have a misunderstanding about the purpose of a trial. They may think that it’s a a religious discussion. They may think that the outcome is not a legal finding, but something completely different. Or they might might feel that the legal case is an opportunity for them to exposit their viewpoint and to be vindicated. Those things aren’t necessarily true.
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And if a person is unable to appreciate the true reason for their participation, it may be seen that their participation is not one which is fair or reasonable. The most complicated group of people who are found unfit to be tried are those whose personality is difficult. These are people who chase all sorts of information down rabbit holes, who become obsessed with minutia of detail, and for whom the experience for their lawyer is a very frustrating one because of their inability to constrain their focus to the issues at hand.
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And in some situations, a lawyer, after trying for many days or weeks, may give up in frustration and indicate that they don’t think their client is actually able to instruct them sensibly. If a person is found unfit to be tried, that generally is a temporary finding. And it therefore requires that the mental health system springs into action and does something about it. In the United States, something like 50 percent of all state psychiatric hospital beds are taken up with accused people who are being restored to competence to stand trial. That is, they’re undergoing compulsory treatment in order to address their mental illness such that they can then participate meaningfully.
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So we talk about restoring people to fitness, to be tried if they have some form of mental disorder which may respond to treatment. Generally, that refers to a person with schizophrenia who if provided medication and if abstinent from substance use, is able to return to a state in which they can participate meaningfully. If the problem however, is cognitive impairment, it may be that there is no form of remediation, which will return a person to fitness. For some people with a congenital intellectual disability, which is relatively mild, a small amount of education may enable them to participate meaningfully, by understanding how the court works.
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But in many cases, people with more severe intellectual disabilities are not able to learn sufficiently to participate fairly. And people with dementing illnesses or with severe acquired brain injuries are unlikely to respond to remediation through psychological intervention or through medication. In that case, they’re often described then as being permanently unfit to be tried. And the court can then move on to working out what form of disposition is appropriate for that.
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Here is where the forensic mental health system can intersect with the criminal justice system, because people found mentally impaired or insane or who were found unfit to be tried may therefore be subject to indefinite detention, in a mental health facility or in a disability facility, where they can be treated humanely, where they can receive treatment for their disorder, but where they can also be managed safely so that they don’t pose an ongoing risk to the community. In some situations, there are statutory provisions that ensure that these people move toward some degree of return to the community, if that can be done safely, generally, after many years and generally under conditions of ongoing treatment or intervention.

In this video, Dr Sullivan talks about the relevant time period for a fitness inquiry, the various components of the assessment process and the manner in which comprehensive fitness assessments must be done.

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Forensic Mental Health and Criminal Justice

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