Assessing Fitness to Stand Trial
This means that the accused need not be able to act in his or her own best interests but, rather, need only be able to recount to counsel the facts pertaining to the offence that will allow counsel to present a proper defence. The appellate judge decided that the “‘limited cognitive capacity’ test strikes an effective balance between the objective of the fitness rules and the constitutional right of the accused to choose his own defence and to have a fair trial within a reasonable time” (7, p 567). This case narrows the criteria used to assess fitness to stand trial.
Prior research on fitness to stand trial has identified several important areas that need to be considered in further detail. One concerns the resources, such as time and money, allocated to the determining of fitness. Roesch and Golding argued that lengthy inpatient assessments are unnecessary to evaluate fitness for most cases in which the issue has been raised (6). They reached this conclusion after comparing decisions about fitness made using a brief interview with those made after a period of detention in a forensic hospital, wherein they found that the additional information obtained during hospitalization had little influence on the judgements about fitness. Further, only a small proportion of those individuals remanded for fitness assessments are actually found unfit to stand trial (8). Several reasons have been cited for this. First, because mental illness is highly prevalent in jails (9), fitness remands are sometimes used as a way of steering these individuals into mental health facilities (10). Second, these individuals are sometimes remanded for fitness evaluations as a way of getting them into treatment when they will not voluntarily commit themselves or when outpatient treatment is unavailable (11). Third, fitness assessments may be used as a legal manoeuver to allow prosecutors more time to prepare their case and defence attorneys to gain information that could be used to determine the feasibility of a later insanity plea (6). To direct limited resources to those individuals who really need them, it therefore is prudent to screen out those individuals who are clearly fit to stand trial.
Two decades ago, Roesch and Golding concluded that a brief, immediate screening interview could be used to evaluate fitness to stand trial. They also concluded that this method cost less and increased the protection of individual rights, compared with remanding to a forensic institution. They argued that brief screening instruments would save time and money because the screening procedure could be done within a couple of hours, without placing the individual in a costly psychiatric institution (6).
Grisso and others surveyed pretrial forensic evaluation services in the US and found that “the traditional use of centrally located, inpatient facilities for obtaining pretrial evaluations survives in only a minority of states, having been replaced by other models that employ various types of outpatient approaches” (12, p 388). Of these outpatient approaches, the researchers noted that 7 states (14%) used screening evaluations, defined as “brief evaluations at jail or courthouse to determine whether there was a need for a full evaluation for competence to stand trial” (12, p 389).
In Canada, it appears that we have not made the same move toward community-based evaluations. In 1980, most defendants remanded for fitness assessments were assessed as inpatients (8). Roesch and his colleagues found that, over a 2-year period, 88% of defendants who were remanded for fitness or criminal responsibility assessments in British Columbia were sent to an inpatient facility for evaluation, leaving only 12% to be assessed as outpatients (13). A recent comprehensive investigation of the impact of Bill C-30 in 4 provinces indicates that in Quebec, Alberta, and British Columbia most fitness evaluations still occur on an inpatient basis, whereas in Ontario most occur on an outpatient basis (14).
Measures of Fitness
Although several instruments have been developed to assess fitness to stand trial (15,16) only one, the Fitness Interview Test (FIT), was designed specifically for use in Canada and reflects the changes that were made to the Criminal Code in 1992 (17).
The Fitness Interview Test
The FIT is a semistructured interview that takes approximately 30 minutes to administer and assesses the 3 psycholegal abilities specified in the Code. Each section comprises questions that tap into different areas involved in fitness to stand trial. The first section (6 items) assesses the defendant’s understanding of the arrest process, the nature and severity of current charges, the role of key players, legal processes, pleas, and court procedure. The second section (3 items) assesses the defendant’s appreciation of the range and nature of possible penalties, appraisal of available legal defences, and appraisal of likely outcome. The final section (7 items) assesses the defendant’s capacity to communicate facts to the lawyer, relate to the lawyer, plan legal strategy, engage in his or her own defence, challenge prosecution witnesses, testify relevantly, and manage courtroom behaviour.
Items are rated on a 3-point scale. A score of 2 indicates definite or serious impairment in the defendant’s ability to meet the psycholegal criteria, a score of 1 indicates possible or mild impairment, and a score of 0 indicates no impairment. Each of the 3 sections is also rated in the same manner. Although performance on the items contained in a section is considered in determining the section rating, decisions are not made based on a cut-off score. Instead, these section ratings constitute a separate judgement based on the severity of impairment and its perceived importance.
Participants. All men remanded for fitness evaluations to the Forensic Psychiatric Institute (FPI) in Port Coquitlam, British Columbia, between October 1994 and December 1995 were eligible to take part in this study. Those who volunteered had the procedure explained to them in detail and were then asked to sign a consent form (Note 1). There were 309 individuals remanded for fitness evaluations during this time period. The researchers asked 285 whether they would like to participate in the study. Of these, 6 could not take part because, due to the severity of their mental illnes, they could not give informed consent. Five participants did not complete the study because they were either discharged or moved within FPI before they could complete it. The remaining 24 remands were not contacted because the Christmas holidays and the researchers’ schedules did not permit them to see these individuals.
To ascertain whether this subset of defendants represented the larger sample, we obtained file information on the nonparticipants, and compared the 2 groups. No significant differences were found in demographic variables, including age, marital status, and ethnic group, or in the type of crime committed. Nonparticipants were significantly more likely to have been diagnosed with a psychotic disorder: c2= 10.4, df 1, P < 0.05 (n = 279). Since it is more difficult to obtain proper informed consent from defendents with psychosis defendants, this finding is not surprising.
Most participants (64%) were white, single (54.5%), and unemployed (67%) at the time of admission to FPI. The average age at the time of testing was 34.4 years (SD 11.07). According to the files, 84.2% of the participants had previous contact