From time to time, I will be posting about legal matters. Please be aware that these posts reflect my understanding of the material and are not a formal legal advice! If you don't agree with my facts, opinions and interpretations, please post a comment!
To start with - the biggie - fitness to stand trial.
This issue impacts directly into ethical obligations of the legal profession. If there is a question of somebody being unfit to stand trial, it is unethical for the legal practitioners to proceed unless the matter is resolved. Therefore, be prepared that if you raise that issue, there will be a flurry of activity, questioning, requests for supplementary reports, etc. etc. Of course, it is unethical for us to avoid this question just because it will have an effect of throwing a stone into a beehive.
Anyway, memory problems do not make a person unfit to stand trial, and this is clearly said in the Act. There are 6 reasons a person may be unfit, and it is enough if only one of them is present. The reasons include:
- being unable to understand the nature of the charge
- being unable to enter a plea and exercise the right to challenge jurors or the jury
- being unable to understand the nature of the trial
- being unable to follow the course of the trial
- being unable to understand the substantial effect of any evidence that may be given in support of the prosecution
- being unable to give instruction to the legal practitioner.
The link to the actual Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Act No 65/1997 is here. The bits of interest are: Part 2.6 and 2.7.
It is important to remember that intellectual disability alone is not usually considered to be enough to be unfit to stand trial.
Cheers,
Izabela
I am totally agree with your facts, opinions and interpretations. This is great post.
ReplyDeleteNeuropsychologist Clinical Melbourne
As part of the legal criteria within most Australian legal jurisdictions and as outlined in the instrumental case of R v Presser, it is also essential that the defendant also be able to make a defense/answer to the charge and be able to let this be known to the court.
ReplyDeleteThere are several other important cases that need to be considered when determining fitness to stand trial.for example see the case of Kesavarajah, where the importance of the defendant being able to remain fit throughout the duration of the trial was highlighted.
Providing the court with Fitness to stand trial opinions has traditionally been the realm of forensic psychiatrists. Over recent years, forensic psychologists have increasingly been called upon to provide opinions on fitness, primarily in cases of intellectual disability. As the courts are educated about the importance of cognition and its potential implications for fitness to stand trial, the potential for neuropsychological evidence to be accepted in the Australian courts increases.
However as clinically trained practitioners, we as a profession need to be particulary mindful of and fully educated about forensic procedures and the legal framework within the separate court systems (family, criminal and civil), and as such, it should only be entered into with such knowledge so as to shed a positive light on the possible role neuropsychologists can have in answering this question and to ensure we uphold the standards of not only the profession of neuropsychology but more broadly psychologists working in the forensic arena.
Forensic Psychologist and Neuropsychologist in Training, Sydney
Thank you, Amanda, a great comment!
ReplyDeleteCan we have more input from you?? Send me an email (IzaWalters@gmail.com), if you'd feel like posting an occasional entry on the blog, and I'll log you in as a co-author.
I find that knowing the legal background for a report really helps in producing a more concise, targeted and useful document. And the lawyers are most helpful in providing the legal background when asked, and even in forwarding relevant documents and links.
Cheers,
Izabela