Crimes Mental Impairment consultation paper.pdf - Victorian Law ...

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Difficulty in assessing unfitness to stand trial
4.74 As discussed earlier, another issue concerning the test for determining unfitness to
stand trial is the lack of clarity in the Presser criteria. The lack of clarity may be causing
problems for expert assessments of unfitness to stand trial. There is evidence that in the
United Kingdom clinicians are applying the criteria in an inconsistent manner. 95 Further,
an accused person who is assessed for unfitness to stand trial will be somewhere on
the fitness continuum. 96 The cut-off point on this continuum, or the point at which it
becomes fair that the accused person stands trial, is a ‘subjective and difficult empirical
judgment’ and ‘a moral, social and legal question’. 97 Complicating this difficulty is the
absence of a clear connection between what experts need to consider when assessing
someone who may be unfit to stand trial and the legal test for unfitness to stand
trial. The current test requires experts to interpret legal criteria by reference to clinical
decision-making models. 98
4.75 If the concerns discussed in this section are indeed problems, it is important that the
process for assessing unfitness to stand trial is improved. As Freckelton observes:
given that determinations have to be made about accused persons’ fitness to stand
trial and given that those decisions are significantly influenced by expert evidence from
psychiatrists and psychologists, it is important to reduce subjectivity and arbitrariness in
the assessment process so far as that is possible by the provision of clear guidelines for
what constitutes unfitness. 99
4.76 One option would be to reformulate the test so it is easier to apply. The discussion of
options earlier in this chapter may assist in the development of a test with criteria that
would be easier to apply by experts. However, while the difficulty in assessing unfitness to
stand trial may be a reflection of the criteria, it may also be due to other factors, such as
the lack of a standardised test. 100
Question
14 What changes can be made, if any, to enhance the ability of experts to assess
an accused person’s unfitness to stand trial
95 N J Blackwood et al, ‘Fitness to Plead and Competence to Stand Trial: A Systematic Review of the Constructs and their Application’ (2008)
19(4) Journal of Forensic Psychiatry and Psychology 576, 586.
96 K C Glass, ‘Refining Definitions and Devising Instruments: Two Decades of Assessing Mental Competence’ (1997) 20(1) International Journal
of Law and Psychiatry 5.
97 Birgden and Thomson, above n 70, 211.
98 Lisa Chantler and Karen Heseltine, ‘Fitness: What is the Role of Psychometric Assessment’ (2007) 14(2) Psychiatry, Psychology and Law
350, 352.
99 Freckelton, ‘Rationality and Flexibility in Assessments of Fitness to Stand Trial’, above n 68, 54.
100 Law Commission, above n 42, 95–6.
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