Fit or unfit: Ask the experts

Dealing first of all, with the issue of fitness to be tried and the questions relating to that, a jury determines whether an accused is unfit to stand trial using their common sense and their collective experience of life. The clinician’s task is quite different. It will generally involve describing the symptoms of the accused’s condition and ascribing to that collection of symptoms, a label or a name. Now, a jury will take those symptoms and the condition, and they’ll apply it to the questions that need to be asked to determine the issue. The ultimate issue- Will the accused in this trial, for example, be able to follow the course of the trial?

Will they be able to understand the substantial effect of the evidence as part of the assessment? The jury will take into account the complexity of the trial. For example, an accused may be fit to stand trial for a simple assault matter, whereas that same accused with those same symptoms and condition may not be fit to stand trial in a complex fraud. Notes for the jury to determine those sorts of questions taking into account all of the circumstances. The clinician’s task, of course, is much narrower. The overriding principle is that it is for the jury acting collectively on behalf of the community who ultimately makes the decision. Not a psychiatrist, not a psychologist.

Certainly, a psychiatrist may proffer the opinion that an accused person is unfit to stand trial, but it is for the jury to decide that question. Ultimately, in light of all of the circumstances, in light of all of the evidence that is presented before them and in light of what they accept in light of what they reject.

Now, when they assess expert evidence, when they assess the opinions of expert witnesses, they should look at things such as the qualifications of the witness, they should look at how the witness presents to the court, what their demeanour was like. They should look at the way that the opinion of the expert is expressed. Is it confident? Is it overconfident? Is it tainted? Have these two qualified things of that nature?

Importantly, the evidence will be tested through cross-examination. How does the expert respond to that? How do they deal with it?

Does the expert appear objective? Or do they come across as being biased or overly defensive, or perhaps prepared to put their ego before other matters that are more important for the proper determination of the court? Another issue would be the quality of the reasons put forward by the expert to justify their opinion. And importantly, jurors will need to examine very carefully the facts that are said to support the opinion. At the end of the day, expert witnesses opinions are only valuable if the facts on which those opinions are based are true and accurate.

The first challenge in explaining clinical information in a courtroom is ensuring that your diction is clear and that your sentences are broken down into appropriate thought units. It’s particularly important to use clear explanations and language and to avoid the use of jargon. In particular, psychodynamic terms, which are not easily understood by the court. We advise our experts to seek feedback from lawyers. In their training to take a supervisor or a mentor to court in order that they can receive feedback from them, and also to seek transcript or judgments to find out how effectively the information they conveyed has been taken into account.

I find that when I look at transcripts of my evidence, my sentences are long, broken up by commas and they sound fine when spoken. But in printed terms they appear awkward and prolix.

Almost all personality disorders can appear in fitness assessments. In particular, antisocial personality may be associated with malingering, borderline personality disorder may be associated with poor engagement or participation in the task. The most common, however, is paranoid personality disorder, where persecuted ideation can assume delusional elements and can ensure that the person’s thoughts about the court may be influenced by their sense of paranoia. The idea that the court is rigged against them, or that the decision is preordained. We also note that people with avoidant and dependent personality disorders may struggle to make decisions or to assist their legal representatives effectively.

And finally, people with obsessive compulsive personality features may be so long winded, so tangential and so caught up in extraneous detail that they can’t sensibly advise their legal representatives or participate in the matter. They become waylaid by extraneous information. The sorts of disorders which are most commonly missed in fitness assessments that need to be looked for specifically are related to cognitive impairments, in particular intellectual disability in the high mild range or in the borderline range. Most of these people have become used to passing as normal, and they won’t necessarily disclose some of their impediments in thinking.

In particular, there are some specific language disorders described as receptive or expressive language disorders in which the person’s capacity to understand the nuances of language or to communicate effectively are surprisingly constrained. These may not be detected in a standard cognitive assessment and sometimes require a specialist speech pathologist assessment. But the prevalence, particularly in young offenders and those who have exited school prematurely, is, in some situations up to 50 per cent of young offenders. Finally, some acquired brain injuries, particularly through substance use, may be difficult to detect.

Alcohol related brain injuries can present with confabulation or people filling in gaps in memory, even when they don’t specifically remember that is pretending to themselves as well as to others, that they knew what was going on. And other forms of substance use caused brain injuries typically present with impairments of processing speed, executive functioning and the capacity to weigh, retain and use information effectively.

The question posed by the court is generally whether an individual is fit to stand trial or not. So most of the certifications also carry the same verdicts, and it’s generally a single sentence certificate, which says that the individual is either fit or unfit to stand trial. So I say that yes, the fitness certification is oversimplified simply because we do not have standard methods of reporting and certifying fitness or unfitness. What I would recommend is that all fitness assessments and certification should also include the diagnosis of the individual, the reasons why the individual is deemed unfit. For example, is it because he’s unable to comprehend the charges?

Is he able to help his lawyer or is he unable to understand the court proceedings and so on? It is also important to indicate whether this unfitness is reversible or irreversible because we know that fitness is a dynamic construct. So by providing certain interventions in the form of training or treatment, with this, unfitness be reversed. So this also needs to be indicated in the certification.