Assessing Fitness to Stand Trial

AuthorRichard D. Schneider; Hy Bloom
 5
Assessing Fitness to Stand Trial
The evaluation of an accused person’s tness, or competency, to stand
trial is one of the most fundamental psycholegal tasks that bring psych-
iatrists or psychologists into contact with the criminal courts. The
assessment of tness is a critical part of forensic psychiatry or psych-
ology in the criminal setting, and the nding of such an assessment is
clearly a matter of signicance for the accused. From the court’s per-
spective, assessment is an issue that will oen require input from an
“expert,” although, strictly speaking, expert involvement is not required.
An evaluation of tness to stand trial involves assessing the accused’s
functional abilities, behaviour, and capacities in relation to the char-
ges being faced and the accused’s overall legal predicament.1 The ele-
ments of tness include not only specic aspects of knowledge (i.e., the
accused’s ability to understand their legal situation and the trial process
as well as their ability to communicate with counsel) but also the indi-
vidual’s beliefs, capacity to weigh variables, and aective state, as they
relate to being t to stand trial.
The approach to assessing tness to stand trial is similar to the gen-
eral principles used in the clinical approach to evaluating all compe-
tencies: individuals are competent for a particular task or with respect
to a matter if they understand the nature of the matter at issue and the
implications of acquiescing to or engaging in the task or function, or
of foregoing it.
1 T Grisso, Evaluating Competencies: Forensic Assessments and Instruments (New York:
Plenum, 1986) at 69.
82    
An accused must have the intellectual/cognitive, psychological, and
emotional wherewithal to participate in a criminal trial (and, as we’ve
argued in Chapter 2, Section 4, to participate “meaningfully”), although
varying degrees of these capacities will be called into play, depending
on the complexity and duration of the criminal charges. The rules for
tness to stand trial protect both the accused and the criminal justice
system by ensuring fairness through presence of mind and meaningful
participation of the accused and the integrity and dignity of the criminal
justice system, respectively. Although the tness rules ultimately evolved
out of a need to protect an accused from being subjected to criminal
process unfairly (that is, when they were not well enough to respond to
it), one should not forget the potentially onerous implications of a nd-
ing of untness. This is particularly so having regard to the presumption
of innocence that should favour every accused. A nding of untness,
particularly for an unwell accused who is refractory to treatment, could
result in months, or potentially years, of deprivation of their liberty. In
Canada, it may also result in the making of a treatment order, which
compels the accused to submit to treatment with or without consent or
capacity, for the limited purposes of rendering them t.
This chapter will rst provide the reader with an understanding of
the statutory mechanism for bringing about a psychiatric assessment
of an accused’s tness and the parameters within which it takes place.
The chapter will then review the clinical considerations involved in con-
ducting a tness assessment and reporting its results. Third, we con-
sider specic legal considerations in dealing with unt accused for
example, the biennial need to establish a prima facie case, uctuating
tness, and the consequences of a nding of untness. Reports in t-
ness cases is the fourth and concluding area of focus in this chapter.
Both the parties and the court are invested in ensuring that an unt
accused is not subject to criminal prosecution. Because of this shared
concern, and a diminished climate of adversariness in respect of t-
ness concerns, the standard of “reasonable grounds” for a court to
order an assessment (pursuant to section 672.11(a) of the Criminal Code2)
is generally not too dicult to establish.
2 RSC 1985, c C-46.
Chapter 5: Assessing Fitness to Stand Trial 83
Notwithstanding the generally less adversarial atmosphere of t-
ness matters, defence counsel must be vigilant about potential signs
of untness in a client and must challenge opinions that an accused
is t if their experience with or appraisal of their client is at odds with
that individual’s history in court thus far and/or the clinical records.
This issue has yet to emerge full-force in Canada, but American caselaw
reects numerous cases in which a lawyer’s “failure to investigate bona
de signs of incompetence (i.e., untness) constitutes ineective assist-
ance of counsel and grounds for reversal of a criminal conviction.”3
Signs that an accused is mentally unwell and could have diculty
managing the legal process may have been observed on arrest or once
the accused is in custody at the police station or detention centre. Sim-
ilarly, rst observations of something amiss with the accused may have
been noted by court sta and agged for duty counsel, the prosecutor,
or the judge. Some of the more commonly seen behaviours in accused
that may raise concerns about tness include the following:
uncontrollable behaviour
disjointed, vague, eccentric, and/or incomprehensible communi-
marked suspiciousness (e.g., looking about room, furtive glances,
markedly dishevelled appearance
markedly inappropriate aect (e.g., expressing anger or laughing
for no apparent reason)
expressing strange ideas
lack of meaningful responses
talking to self
unresponsiveness or muteness
a high level of distraction or distractibility
The mere fact of a past psychiatric history or display of some prob-
lematic behaviour is generally insucient for requiring an assessment,
although it is clearly up to the judge to decide what factors or observed
3 See the discussion in Douglas Mossman et al, “AAPL Practice Guideline for Foren-
sic Psychiatric Evaluation of Competence to Stand Trial” (2007) 35:4 Journal of the
American Academy of Psychiatry and the Law Supplement S3 at S13.

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