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Brookbanks, WJ; MacKay, RD --- "Decisional competence and 'best interests': establishing the threshold for fitness to stand trail" [2010] OtaLawRw 3; (2010) 12 Otago Law Review 265

Last Updated: 25 February 2012

Decisional Competence and ‘Best Interests’: Establishing the Threshold for Fitness to Stand Trial

WJ Brookbanks & RD Mackay*

1. Introduction

The doctrine of fitness to stand trial, or trial competence, performs a vital, albeit complex, role in criminal proceedings. It is designed to provide a standard for determining whether an offender has the mental capacity to undergo the rigours of the criminal trial process, such that the trial can be declared to have been fair. But what this means in practice is a testing question. Does it mean, for example, that an accused has enjoyed minimum opportunities to establish an approved level of competence, or is something more expansive and protective called for? Should it be necessary to establish trial competence that the accused had an appreciation of the subtleties of the trial process or will a rudimentary factual understanding of the process be sufficient to establish the capacity to proceed? When we consider the question in these terms it becomes clear that at some level trial competence is an agonistic doctrine, in the sense that it involves a polemical debate as to where the threshold for competence is to be set, and what capacities are implied in reaching this threshold.

In this article we wish to explore this issue with particular reference to the question whether fitness for trial implies an accused’s ability to make trial decisions that are in their “best interests”. Arguably, the fact that an accused is not capable of acting in his or her best interests should send a signal that he may be unfit to stand trial, since his inability to understand what is appropriate for him has grave potential to alienate the fact-finder and lead to an unjust conviction. Yet, as we shall see, courts in many common law jurisdictions, including Canada, Australia, the United Kingdom and New Zealand have uniformly held that the fact that a defendant is not capable of acting in his own best interests is not a conclusive sign that he is unfit to stand trial.1 We will endeavour to show that this test, while commonly upheld by the courts, can no longer be described as reflecting hornbook law, and is currently under serious reconsideration by the courts, at least in the United Kingdom

* Professor WJ Brookbanks, Faculty of Law, University of Auckland; Professor RD Mackay, Professor of Criminal Policy and Mental Health, De Montfort University, Leicester, England.

1 See R v Berry [1977] 66 Cr App R 156. In R v Taylor (1992) 77 CCC (3d)

551, at 564-565, the Ontario Court of Appeal held that “The fact that an

accused person suffers from a mental disorder which may cause him

or her to conduct a defence in a manner which the court considers to

be contrary to his or her best interests, does not, of itself, lead to the

conclusion that the person is unfit to stand trial.” In Eastman v The Queen

[2000] HCA 29 (25 May 2000) the High Court of Australia considered that

that proposition was “sound” and consistent with the statutory test set

out in s68 (3) Mental Health (Treatment and Care) Act 1994 (ACT).

and New Zealand. We will argue that a better approach is the notion of decisional competence, which allows more discriminating evaluations of trial capacity to be made and is better able to produce truly just outcomes where trial capacity is in issue.

The article commences with a discussion of the English case law in which the notion of a “best interests” test was first articulated and where this has led in the development of English law of fitness to plead. We then examine the idea of decisional capacity and how this has begun to turn fitness jurisprudence more decisively towards a capacity-based notion of trial competence. The article then examines the developments in the New Zealand case law where the best interests standard has been discussed and the future implications for New Zealand law. In the final section we examine various reform proposals arising out of this debate and consider their relevance for New Zealand law.

2. Trial Competence and Best Interests – What is the Problem?

The doctrine of unfitness to stand trial, as is now well attested, has its origins in the English common law of the 19th century.2 It is not our purpose in this context to review that history save to identify some features of it that are relevant to this discussion.

A problem for the development of the doctrine in those jurisdictions, which base their fitness rules on English common law, has always been the relatively small volume of reported case law on the subject, reflecting a relatively low incidence of findings of unfitness in England and Wales. New Zealand research is similarly revealing, although Justice Department statistics for the period 1990 to 2002 show a steadily increasing number of findings of unfitness to stand trial during that period, with a total number of 55 findings of unfitness in 2002. Research undertaken by Mackay, Mitchell and Howe3 found that while there had been a continued upturn in findings of unfitness to stand trial in England and Wales during the period 1997 – 2001, the annual numbers of such findings were still relatively small,4 especially when compared to the high incidence of findings of unfitness each year in the USA.5 This led Mackay et ors to question whether the legal test for unfitness to plead is fit for the purpose of the 21st century, given the adoption of more flexible

2 For a recent excellent summary of the early origins of the doctrine see TP Rogers, NJ Blackwood, F Farnham, GJ Pickup and MJ Watts “Fitness to plead and competence to stand trial: a systematic review of the constructs and their application” (2008) 19(4) The Journal of Forensic Psychiatry and Psychology 576.

3 RD Mackay, BJ Mitchell and L Howe “A Continued Upturn in Unfitness to Plead – More Disability in Relation to Trial under the 1991 Act” [2007] Crim LR 530.

4 The authors note an increase from 50 findings in 1997 to 80 findings in

1999. Ibid at 532, Table 1.

5 Rogers et ors note that around one fifth of an estimated 60, 000 evaluations

each year in the USA find competence to stand trial lacking. Above n 2,

at 584.

and wide-ranging criteria for assessing fitness in other jurisdictions.6

At the heart of this debate is the adequacy of the criteria to be satisfied when fitness to plead is in issue and whether an exclusive focus on a defendant’s intellectual abilities is an appropriate basis upon which to determine trial competence. In particular, it is claimed that the common law Pritchard criteria for determining fitness is based on an unduly narrow test of a defendant’s intellectual abilities.7 Allied to this

‘functional’ test of capacity (ie the focus is on the interaction between a person’s abilities and the demands of a particular situation or task)8 is the now well-established principle that the mere fact that the defendant was incapable of doing things that were in his best interests was insufficient for a finding of unfitness.9 The effect of this “gloss” on the Pritchard test is to say that the fact an accused may do herself a serious injustice is irrelevant to determining fitness to plead or to stand trial. The test was first articulated in R v Robertson,10 where the defendant had appealed against a finding of unfitness, on the basis that the introduction of the word “properly” in the judge’s summing-up, as a qualification to the defendant’s trial – related capacities, introduced a matter that was either irrelevant or confusing. On the contrary, the defence claimed, an accused would be fit to stand trial even if, though understanding everything that was going on, he wrongly or unwisely or inaccurately did certain things.11 While this is undoubtedly true, the simple statement of this proposition disguises the fact that acting “wrongly” or “unwisely” may itself be a measure of mental incompetence, sufficient in some cases to justify calling a halt to the proceedings.

Nevertheless, the Court acceded to the defence’s proposition and allowed the appeal. Lord Parker CJ held that the jury may have thought that the mere fact that the accused was not capable of doing things which were in his best interests was sufficient to enable them to return a finding of unfitness to stand trial.12 This proposition had been objected to by defence counsel on the ground that the introduction of the word “properly” throughout was to introduce a matter which was either irrelevant or confusing, because, as noted above, it implied that a person would not be fit to stand trial even if, although he understood everything that was going on, he wrongly or unwisely or inaccurately did certain things. In other words, the suggestion arising from expert

6 Mackay et ors, above n 3, at 544.

7 See R v Pritchard [1836] EngR 540; [1836] 7 C & P 303. Under this standard five basic criteria

must be satisfied, namely, ability to plead to the indictment, ability to

understand the course of the proceedings, ability to instruct a lawyer,

ability to challenge a juror and ability to understand the evidence. A

deficit in any one of the criteria renders an accused legally unfit to plead.

See Mackay et ors, above n 3, at 535-536.

8 See Rogers et ors, above n 2, at 584.

9 R v Robertson [1968] 3 All ER 557 .

10 Ibid.

11 Ibid at 559.

12 Ibid at 560.

evidence given in the trial was that, for example, although the accused may have been entirely capable of understanding the legal effect of pleas of guilty, not guilty etc, his delusional thinking might cause him to act otherwise than in his best interests. However, it should be said that a person whose delusional thinking causes him to act otherwise than in his best interests can hardly be said to have a full understanding of the legal effects of pleading etc since if he did, he would, presumably, not be inclined to make decisions so manifestly contrary to both his interests and the interests of justice.

Yet, agreeing with defence counsel’s objections to the basis on which the unfitness finding was formulated, and allowing the appeal, Lord Parker CJ concluded that the mere fact that the appellant was not capable of doing things which were in his own best interests was insufficient ground for a jury to return a finding of disability, or unfitness to stand trial. There is no further discussion in the judgment as to what the practical implications of this finding might be. We would argue that they are many and far-reaching.

A similar approach was taken in another seminal case ten years later. In R v Berry13 the Court of Appeal held that even a “high degree of abnormality” does not necessarily mean that a person is incapable of following a trial, giving evidence or instructing counsel.14 This was despite the fact that in giving evidence, in which he referred to the accused’s “grossly abnormal mental state” a medical witness testified that his mental state was so disturbed “he is not able to view [his actions] in any sort of sensible manner.” Yet how requiring such a person to undergo a trial could possibly be consistent with justice and fairness is impossible to fathom.

Nevertheless, Robertson and Berry and the principle that they enshrine are now clearly part of the common law of fitness to stand trial and have been cited with approval in more recent cases. They establish the position that a person can suffer a high degree of mental abnormality without being found unfit to stand trial.15

However, for all its simplicity, this analysis, which requires only that an accused person have a rudimentary understanding of the trial process, is not without its problems. The English Law Commission16 have noted, for example, that:

Incapacity cannot in every case be ascribed to an inability to understand information. It may arise from an inability to use or negotiate information that has been understood. In most cases, an assessor of capacity will have to consider both an ability to understand information and the ability to use it in exercising choice, so that the two ‘sub-sets’ should not be seen

13 (1978) 66 Cr App R 156.

14 Ibid at 158, per Geoffrey Lane LJ.

15 Rogers et ors, above n 2, at 585.

16 Law Commission Report on Mental Incapacity Report No 231 (1995) at

para 3.15.

as mutually exclusive.

Professor Mackay, commenting on this passage, has noted that while such incapacity will often be the result of mental disorder, the Commission recognised that “some people might be suffering from an inability to communicate rather than an incapacity to make any decision.” 17 Therefore, the Commission proposed that a person should be considered to be incapable of decision-making where “he or she is unable to communicate the decision to others who have made reasonable attempts to understand it.18

However, this enlightened approach is contradicted by the case law. There are many decisions to be made by a defendant facing a criminal trial. Yet, as we have already noted, Pritchard and its cohort of English decisions establishes a test of fitness that requires that a defendant only have a rudimentary understanding of the trial process. After this is established the accused is at liberty to make decisions even though they are not in his or her best interests.19 But this immediately raises a question as to whether a role of the criminal law is to protect those who cannot make ‘true choices’ in relation to decisions about the trial process. If, for example, a defendant insists on pleading guilty contrary to his lawyer ’s advice then surely that choice should be fully investigated in order to ascertain whether it can be relied upon.20 Yet at the present time, in both England and New Zealand, there is no statutory requirement that the accused’s decisional capacity be tested as part of test for unfitness to stand trial.

Despite this unsatisfactory situation there is evidence that practising criminal lawyers question this state of the law. In a recent semi – structured interview devised to study the experiences of senior criminal barristers in England and Wales in the assessment of fitness to plead, it was revealed that there was general disagreement among the participants to the proposition reiterated in R v Berry that “the fact that a defendant is not capable of acting in his own best interests is not a conclusive sign that he is unfit to stand trial”.21 One of the lawyers surveyed said:22

...It’s a very difficult situation to have someone who cannot understand what is good for them, even after advice...they are at great risk of alienating the jury, alienating the judge or being convicted where they might not otherwise be...

17 Law Commission Mentally Incapacitated Adults and Decision-making at para 3.39, cited in RD Mackay “Some Thoughts on Reforming the Law of Insanity and Diminished Responsibility in England” [2003] Juridical Review 57 at 63.

18 Law Commission Mentally Incapacitated Adults at para 3.41.

19 Mackay, above n 17, at 63.

20 Ibid.

21 See TP Rogers, N Blackwood, F Farnham, G Pickup and M Watts

“Reformulating fitness to plead: a qualitative study” (2009) 20(6) The

Journal of Forensic Psychiatry & Psychology 815 at 823.

22 Ibid.

As Rogers et ors note in an earlier article23 the focus of the English law reflected in cases like Berry and Robertson has been upon viewing a finding of unfitness to stand trial as an infringement of the fundamental right to a fair trial, reserved only for the most severely disturbed of defendants.24 The cases have generally not reflected on the implications of allowing a severely disturbed offender to go to trial and the legal consequences of irrational and highly damaging decision-making. Yet as the authors note, cases like those of Venables and Thompson, the 10-year- olds convicted of the brutal murder of two-year-old James Bulger after trial in an adult court, highlight the risk to a fair trial where defendants lack proper understanding of the legal process or the ability to properly follow proceedings or pass information to their lawyers. They argue that the case and the response of the European Court of Human Rights on an appeal alleging breach of Article 6 of the European Convention on Human Rights, reiterated the importance of re-evaluating the law’s approach to the mentally ill in court.25

Particular problems with the current approach to evaluating trial competence

Rogers et ors note that if fitness to plead were to be reformulated de novo, a wide range of abilities could be considered of importance. While North American researchers have attempted a comprehensive theoretical list of related abilities26 the approach of expanding trial- related competencies has not commended itself to the English courts, for whom the Pritchard criteria are considered comprehensive. Although other bodies have attempted to provide guidelines of potentially relevant areas of psychological assessment, including comprehension, reasoning ability, consistency, memory, suggestibility, insight and others,27 many defendants both with and without a mental disorder are likely to perform poorly in these additional areas without concerns ever being raised as to their fitness.28

Furthermore, the implementation of the Mental Capacity Act 2005 in England, while it has no direct application to fitness to plead, is said to highlight “significant inadequacies” in existing English law on fitness to

  1. See TP Rogers, NJ Blackwood, F Farnham, GJ Pickup, and MJ Watts, above n 2, at 585.

24 Ibid.

25 Ibid, at 585.

26 See eg GB Melton, J Petrila, NG Poythress and C Slobogin Psychological

evaluations for the courts: A handbook for mental health professionals and lawyers

(2nd ed, Guildford, New York, 1997). Cited in Rogers et ors, above n 2, at

581 and see Table 1, at 582.

27 See eg C Dooley, P Baker, P Devonshire, C Evers, C Herbert, H Husband et

al Professional practice board assessment of capacity guidelines group assessment

of capacity in adults: Interim guidance for psychologists (2006). Cited in Rogers

et ors, ibid, at 581.

28 Rogers, et ors, above n 2, at 581.

plead.29 In particular, there is a considerable difference between the strict Pritchard criteria and the much less stringent test that would apply were fitness to plead to be decided in the way defined in the 2005 Act.30 It is argued that the Pritchard test discriminates against significant numbers of defendants who would be better served by a civil test that would more fairly find them lacking in capacity.31

Another important limitation in the current common law criteria concerns the fact, noted above, that the Pritchard test, is concerned with assessing whether an offender has sufficient intellect. Yet less than one- third of defendants found unfit to plead in England and Wales actually have an intellectual impairment.32 At the same time almost one third of those found unfit suffered from schizophrenia,33 a mental condition often associated with the presence of positive psychotic symptomatology34 but not necessarily involving impairment in intellectual functioning. This has produced difficulties in practice where counsel have had problems in finding psychotic patients unfit, using criteria that are not designed with them in mind.35

Inconsistency in applying fitness criteria

English commentators have been aware for some time that the common law criteria for fitness have been applied by clinicians in a highly inconsistent manner.36 In research reported in 2000 Mackay and Kearns found that after examining 197 pre-trial psychiatric reports in only 21 reports did the psychiatrist address all five of the accepted common law criteria for unfitness to plead.37 The two most commonly referred- to criteria were ability to understand court proceedings and ability to instruct counsel. In 28 cases the defendant was considered to be unfit simply by considering the clinical diagnosis without any consideration of the legal criteria or how the diagnosis related to the details of the trial.38

What is important about these findings is that they suggest that other (non-legal) factors may be considered to be as important in clinical judgments about fitness. One study found that clinicians required a higher level of competence for defendants charged with more serious offences, and that there was unequal application of the assessment

29 See G Vassall-Adams & L Scott-Moncrieff “Capacity and fitness to plead:

The yawning gap” (2006) Counsel 14-16.

30 Ibid.

31 Above n 2, at 584.

32 See RD Mackay, BJ Mitchell and L Howe, above n 3, at 533, Table 2.

33 Ibid.

34 Rogers et ors, above n 2, at 585.

35 See Rogers et ors, above n 21, at 824.

36 Rogers et ors, above n 2, at 586.

37 RD Mackay & G Kearns “An Upturn in Unfitness to Plead? Disability in

Relation to Trial under the 1991 Act” [2000] Crim LR 532 at 538.

38 Ibid.

process to competent and incompetent defendants.39 In particular, some critics have argued that what amounts to competence for one person may differ for the next and that it is proper for the degree of required competence to differ relative to the seriousness of the charge.40 Such factors as the complexity of the case, the permanence of the offender ’s condition, whether counsel agrees or disagrees with a defendant’s decisions, the nature of the defence offered, and whether an offender intends to represent himself at the trial, have also been suggested as additional non-legal criteria worth considering.41 However, the fairness of such a “graded” test may be questionable, given its potential to favour more sophisticated offenders charged with complex crimes in findings of unfitness.42

What emerges from this discussion is that, despite its longevity in the common law, the determination of fitness in England and Wales is a relatively unsophisticated process which focuses largely on intellectual impairment. Furthermore, unfitness requires a high level of disability “at the extreme end of a spectrum of ‘psycho-legal’ ability”.43 As a consequence of this rigorous standard many defendants with significant impairments are likely to undergo trial because it does “not set the test of fitness to plead at too low a level”.44

3. The Notion of Decisional Capacity – What is its Significance?

A current debate concerns whether the test for trial competence should rest exclusively on issues of cognition (intellectual understanding), as does the common law Pritchard standard and the current New Zealand statutory test, or whether courts should have cognizance of some wider notion of ‘decisional incompetence’. In R v Friend,45 Otton LJ included, as part of the common law test, whether the accused could “understand and reply rationally to the indictment.” The requirement for rationality, in this context, is new in common law, and bears some similarities to the test adopted by the US Supreme Court in Dusky v US.46 Dusky requires a defendant to have “sufficient present ability to consult his lawyer with a reasonable degree of rational understanding – and whether he has a rational as well as a factual understanding of the proceedings against him.” [emphasis added]. A mere factual understanding of the proceedings

39 B Rosenfield & K Ritchie “Competence to stand trial: Clinician reliability

and the role of offense severity” (1998) 43 Journal of Forensic Science 151

-157. Cited in Rogers et ors, above n 2, at 586.

40 See A Buchanan “Competency to stand trial and the seriousness of the

charge” (2006) 34 Journal of the American Academy of Psychiatry and

the Law 458-465. Cited in Rogers et ors,above n 2, at 586.

41 Ibid.

42 Ibid at 587.

43 Ibid at 592.

44 See the remark of Keene LJ in R v John M [2004] Mental Health Law

Reports 86, 90 at para 31.

45 [1997] 2 All ER 1011.

46 [1960] USSC 61; 362 US 404 (1960).

may, on this basis, be insufficient to meet the Dusky test.

A “rational understanding” element would require that the defendant has “capacity to appreciate one’s situation as a defendant in a criminal proceeding.”47 Such a requirement would go somewhat further than the minimalist criteria specified in the current statutory definition of “unfit to stand trial”.

An approach developed by Professor Richard Bonnie of the University of Virginia, draws a distinction between the foundational notion of “competence to assist counsel” and the contextualized notion of “decisional competence”. The idea is that a defendant who is provisionally competent to assist counsel, may lack competence to make specific decisions likely to be encountered as the trial process unfolds. Thus competence is measured, not simply by an accused’s ability to perform cognitive tasks (eg understand who the judge or prosecutor is, know what a lawyer is and be able to communicate with him or her and know that he is facing a criminal charge in a court) but also the ability to understand and choose amongst alternative courses of action.

The common law has generally eschewed a “rational capacity” standard for trial competence, requiring simply that the accused have a rudimentary understanding of the trial process. On this basis it has been held, as has already been noted, that an accused person should be free to make decisions even though they are not in his or her best interests.48

However, the “low threshold” model fails to appreciate that the critical issue is whether the defendant has the capacity to make such choices at all, not simply whether they are against his or her interests.

The Law Commission of Scotland advocated a test for trial competence based on the accused’s ability to participate effectively in the proceedings against him. According to this approach, an accused is able to participate effectively in his trial if the capacity is limited but duly taken into account in the proceedings, or if he is able to instruct his defence counsel in order to be defended in an adequate manner and have all the relevant facts and arguments submitted, or if the accused is unable to follow the proceedings but his lawyers are able to discuss with him any points that arise.49 This recommendation is now contained in s 119 of the Criminal Justice and Licensing (Scotland) Bill and is likely to be implemented by the Scottish Parliament in the near future. More importantly, in Attorney– General v O’Driscoll,50 the Royal Court of Jersey not only favoured the Scottish notion of “effective participation”, but also specifically included a “decisional competence” limb within a newly formulated test for unfitness to plead which is as follows:

47 See R Bonnie “ The Competence of Criminal Defendants: Beyond Dusky

and Drope” (1993) 47 Miami LR 536 at 554.

48 Eg see R v Robertson [1968] 3 All ER 557.

49 See Scottish Law Commission Discussion Paper on Insanity and Diminished

Responsibility (Discussion Paper No 122, 2003). Para 4.32.

50 [2003] JRC 117.

An accused person is so insane as to be unfit to plead to the accusation, or unable to understand the nature of the trial if, as a result of unsoundness of mind or inability to communicate, he or she lacks the capacity to participate effectively in the proceedings.

In determining this issue, the [Court] shall have regard to the ability of the accused –

(a) to understand the nature of the proceedings so as to instruct his lawyer and to make a proper defence;

(b) to understand the substance of the evidence; (c) to give evidence on his own behalf;

(d) to make ration al de c isions in r e lation to his partic ipation in the pr oceedings, (including whether or not to plead guilty), which r eflect true and informed choices on his part.51

Although it remains open to doubt whether the English courts will follow this approach it is gratifying to note that the Law Commission of England and Wales has now been given the task of reviewing the law on unfitness to plead with a view to fundamental reform.52

4. Approach of the New Zealand Courts to Best Interests Issue

Before examining the issue of “best interests” as it has evolved in New Zealand law, it may be helpful to briefly outline the current New Zealand test for unfitness to stand trial and case law “add–ons” to the test.

The test for unfitness to stand trial

The statutory test for unfitness to stand trial is laid down in s 4 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIPA). It says:

unfit to stand trial, in relation to a defendant,-

(a) means a defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so; and

(b) includes a defendant who, due to mental impairment, is unable – (i) to plead:

(ii) to adequately understand the nature or purpose or possible consequences of the proceedings;

51 Ibid, at para 29, emphasis added. For discussion see R D Mackay “On Being Insane in Jersey Part Three - The Case of Attorney-General v O’Driscoll [2004] Criminal Law Review 291.

52 The Law Commission, Tenth Programme of Law Reform, Law Com No

311 (HC 605) 2008 at para 1.20.

(iii) to communicate adequately with counsel for the purpose of conducting a defence.

The issue of trial competence should always be determined as soon as it arises.53 The essence of unfitness is the defendant’s fundamental inability, because of mental impairment, to conduct a defence or to instruct counsel to do so. The three factors identified above are provided as examples of when a person will be found unfit to stand trial. They are not prescriptive criteria. In the case of P v Police54 Baragwanath J held that an expanded list of incapacities identified by the Court in R v Presser55 and approved by the High Court of Australia in R v Ngatayi56 was pertinent to the assessment of fitness to stand trial in New Zealand and was “more discriminating” than the simple single issue test formulated at common law. They include:

Whether the accused was capable of:

(a) understanding what it is he has been charged with;

(b) pleading to the charge and exercising his right of challenge;

(c) understanding that the proceedings before the court would be an inquiry as to whether or not he did what he was charged with;

(d) following, in general terms, the course of the proceedings before the


(e) understanding the substantial effect of any evidence given against him;

(f) making a defence to, or answering the charge; (g) deciding what defence he would rely on;

(h) giving instructions to his legal representative (if any) and;

(i) making his version of the facts known to the Court and to his legal representative.

His Honour held that the Australian criteria are consistent with, and “illuminate”, both the definition in s 4(1) of the CPMIDA and the test for intellectual disability in s 7 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

At common law, a failure in respect of any one of the relevant incapacities, would render the accused unfit to stand trial, regardless of whether the other capacities are intact. This raises an important question, not yet addressed by the Courts in New Zealand, as to whether, if the

53 See R v Friend [1997] EWCA Crim 816; [1997] 1 WLR 1433, at 1441, per Otton LJ.

54 [2006] NZHC 1681; [2007] 2 NZLR 528.

55 [1958] VicRp 9; [1958] VR 45.

56 [1980] HCA 18; (1980) 147 CLR 1 at 8.

defendant failed to meet one of the “expanded criteria” from R v Presser, that would necessarily result in a finding of unfitness. There may be some reluctance to allow such a result, given that the additional criteria are not statutory and are, arguably, only “illuminatory”.

The question of whether there ought to be a “best interests” component in assessing trial competence, has become a matter of some debate in New Zealand law. However, to complicate matters, the question of a best interests component is conflated in judicial commentary with discussion of the threshold for unfitness, with the implication that since, by general agreement the threshold for fitness is “low” the need for a best interests component is negated. We will argue that this is a somewhat self-defeating argument and one which fails to address the core issue, namely, the accused’s functional capacity.

Power and its successors

The idea that the threshold for fitness is low was first articulated by the Court of Appeal in R v Power.57 The case was an appeal against conviction and sentence on charges of importing and conspiracy to import Class A drugs, the principal ground of appeal being that the appellant was insane at the time of the alleged offending. The principal argument on appeal concerned the circumstances in which the admission of fresh evidence ought to be permitted when the defence of insanity had been deliberately not pursued at trial. The issue of fitness was not raised on the appeal and only entered the judgment as an obiter comment after defence counsel had conceded that there was no ground for contending that the appellant was “under disability” in terms of s 108 Criminal Justice Act 1985. However, the Court offered the following obiter statement which, as we shall show, has been determinative in subsequent cases addressing the issue of unfitness to stand trial directly:

[The test in s 108 CJA 1985] does not require that the appellant actually give instructions which are in his or her best interests. A high threshold of fitness, including a best interests component, would derogate from the fundamental principle that accused persons are entitled to choose their own defences and to present them as they choose... Where fitness to plead is not in issue it is only in exceptional cases where the interests of justice dictate intervening in that decision not to pursue an insanity defence, that further evidence should be admitted at the hearing of the appeal.

There are two points of concern to note about the Power dictum:

1. The case itself is not directly concerned with unfitness to stand trial.

Since the Court heard no argument on the issue of unfitness to stand

57 CA 187/96, 22 October 1996. However, in R v Carrel [1991] NZHC 2561; [1992] 1 NZLR 760 at 764 per Heron J, the High Court cites with approval both R v Berry (1977) 66 Cr App R 156 and R v Robertson [1968] 1 WLR 1767, yet without expressly approving the “best interests” dictum for which both cases are authority. Heron J nevertheless suggests that they represent the law in New Zealand, at least on the issue of burden of proof.

trial, it is curious that it should have used the case to express a broad statement of principle on the threshold of fitness that is binding on all lower courts.

2. The Court provides no explanation or reasoning for its ruling. It is doubtful, therefore, whether the principle articulated can be regarded as a strong authority on where the threshold for unfitness to stand trial should be set.

Lack of clear analysis on “best interests” issue

Regretably, without a careful analysis of the rationale for this rule, the decision in Power has been latched onto by the courts in a quite doctrinaire way, to support the view that the threshold for fitness is not a high threshold and does not include a “best interests” component.58 Indeed, in R v N the Court of Appeal suggested that on the authority of Power, the threshold for fitness in New Zealand is “low”, although that is not what Power and the other cases mentioned actually say. They simply affirm that the threshold is not a high one. Whether it is a low threshold is an entirely different matter and is clearly debateable. The problem is that the courts have never articulated what this means in the context of New Zealand law. It is implied that a low threshold means that an offender need only possess a basic level of competence, and need not necessarily be capable of acting in his or her best interests, to be judged fit to stand trial. Seldom, however, have the courts spelt out what this implies in functional terms or why a low, rather than a high, threshold of competence suffices.59 The upshot of this legal reasoning would seem to be that it does not matter that an accused person, suffering from a relevant mental impairment, acts in a manner which is counter-productive, if not actually destructive of their defence strategy, provided they do have a rudimentary appreciation of the trial process.

Challenges to Power

However, there is some evidence that the authority of the Power test is now being questioned by the courts. In P v Police60 Baragwanath J allowed an appeal against a finding that the appellant, an intellectually impaired youth with an IQ of 58, was fit to stand trial. Of particular interest is the Court’s comments relating to the threshold for fitness to stand trial. His Honour found that the threshold endorsed by Power and approved in Cumming presented a “logical difficulty” because entitlement to choose “implies capacity to do so”.61 This reinforces the point that being a

58 See R v N CA 201/98, 9 November 1998, S v Police HC Palmerston North

CRI 2005-454-047, 8 December 2005 at [21] and[22], R v Cumming [2006]

2 NZLR 597 at [44].

59 A notable exception is the decision of MacKenzie J in S v Police ibid, where

his Honour analyses in great detail the appellant’s capacity in relation to

the statutory test of unfitness based on the evidence given in court.

60 [2006] NZHC 1681; [2007] 2 NZLR 528.

61 P v Police at [20].

defendant in criminal proceedings presupposes a competent adversary, able to respond effectivelyto the prosecution’s allegations. The extent to which this ability is compromised is the extent to which the likelihood of an unfair trial is advanced.

Baragwanath J conceded that where a defendant has successfully resisted a finding of unfitness on an appeal, the Court may be required to accept and manage some tolerance of doubt as to fitness. Yet this did not mean that a court would require a defendant to stand trial “where it is he who relies on credible evidence that he is unable rationally to look after his own interests.”62 Indeed, even though the common law test stated in Robertson “import[ed] acceptance of some degree of irrationality on the part of the accused in cases where the defence has resisted a finding of unfitness,”63 case law developments in England since Robertson now required consideration of whether the accused could understand and reply rationally to the indictment.64 Importantly this new qualification of the common law standard was considered to signal non- acceptance of the “Robertson gloss.”65 We would suggest that this now means that the fact a jury thinks that an accused may not be capable of acting in his or her best interests is an equivocal consideration. In some circumstances it may be sufficient to entitle the jury to conclude that he or she is unfit to stand trial. In other circumstances such an incapacity, when coupled with other indications of well-expressed functional abilities, may incline the tribunal of fact to conclude that the defendant is nonetheless fit to stand trial.

A further challenge to the hegemony of Power’s case arises from the decision of MacKenzie J in S v Police.66 The case was an appeal under s 14(2) of the CPMIPA against a finding of fitness made against the appellant on 11 charges of sexual offending. His Honour outlined the changes to the definition of unfitness to stand trial effected by the 2003

Act. However, while MacKenzie J noted and adopted the prevailing view, derived from Power, that the threshold of fitness was “low”, he went on to suggest that there may have been “some raising of the threshold” in the ability of the court to have regard to considerations other than those specifically contained in para (b) of the definition of “unfit to stand trial” in s 4 CPMIPA and a raising of the threshold of understanding, reflected in the addition of the word “adequately” in subpara (b)(ii) of the definition.

This concession to the raising of the threshold of fitness may suggest that while the Court still holds to the orthodoxy of Power, there has been a significant movement away from the narrow strictures of the common law, albeit falling short of a rejection of the Robertson gloss.

62 Ibid at [22].

63 Ibid at [23]. Emphasis added.

64 See R v Friend [1997] EWCA Crim 816; [1997] 1 WLR 1433 (CA).

65 P v Police [2006] NZHC 1681; [2007] 2 NZLR 528, 534 at [23].

66 HC Palmerston North CRI-2005-454-047, 8 December 2005.

A more direct challenge to the authority of Power is evident in the High Court decision in R v Buddy Roberts.67 The case involved the declaring of a mistrial after defence counsel was, by inadvertence, denied a final opportunity to persuade his client not to give evidence. It is an important decision in a number of respects. In addition to recognising and applying a distinction between (foundational) fitness to plead and decisional competence, the judgment appears to incorporate a “best interests” test as part of the test for decisional competence. The test for decisional competence is formulated in terms of “whether or not the accused is fit to make decisions in his own interest as to the conduct of the trial”, 68 and recognises that there is a formal and significant difference between the ability to plead and fitness to stand trial.69 In fact, Fogarty J acknowledges that “modern academic thinking is moving towards decisional competence judged on context”, noting a similar approach being taken in the assessment of capacity in the context of civil litigation.70

Of further significance for the purposes of this discussion is the Court’s finding that the amended fitness criteria in para (b) of the definition of “unfit to stand trial” in s 4 of the CPMIPA which begins with the word “includes”, are intended to be merely a subset of para (a), but do not define or set a benchmark on the criteria to be applied to (a).71 This suggests that when determining whether a defendant is mentally impaired and, on that account, unable to conduct a defence or to instruct counsel to do so, a broad and unlimited range of factors may be considered including, we would venture, whether failure to conduct a defence or so instruct counsel, is in the defendant’s best interests. While this additional criterion is not explicit in Fogarty J’s decision it is, arguably, implied in the expansive approach the Court takes to the fitness criteria. Furthermore, his Honour insists that the cause of “due to mental impairment” must be applied to the task to be expected of the accused person and the judgment made in the context. It “ not satisfied by the accused person demonstrating some fundamentals of rationality.”72 This again suggests that a contextualised approach to causal mental impairment may engage a much wider range of relevant criteria than those articulated in the statute or at common law, including matters that may be harmful to self-interest, where such matters can be shown to significantly affect the defendant’s ability to conduct a rational defence.

This approach is also consistent with the developing jurisprudence in this area. In P v Police73 Baragwanth J, in adopting the expanded Australian fitness criteria as pertinent to the assessment of fitness to stand trial in New Zealand, acknowledged that the list of incapacities

67 HC Auckland CRI 2005-092-014492, 22 November 2006.

68 Ibid at [23]. Emphasis added.

69 Ibid at [26].

70 Ibid at [54].

71 Ibid at [55] & [35].

72 Ibid at [57]. Emphasis added.

73 [2006] NZHC 1681; [2007] 2 NZLR 528.

derived from R v Presser74 was “more discriminating” than the simple single issue test of Pritchard and both consistent with and illuminating of the definition in s 4(1) of the CPMIPA and the test in s 7 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.75

5. Some Reform Proposals

It is evident from this discussion that there are some important gaps in legislation governing fitness to stand trial. In this section we propose to highlight some areas where law reform is clearly needed without attempting to provide an exhaustive account.


Beginning at the early stages of the trial process a strong critical theme that has emerged is the absence, in many jurisdictions, of any effective means of screening offenders to ensure that those who may be legally unfit to stand trial are identified and appropriately dealt with. In New Zealand this has become a major concern in relation to determining whether the issue of an accused’s unfitness to stand trial has been “triggered”. 76

Anecdotal accounts suggest that many mentally disordered offenders enter the trial process even to the point of being sentenced, without any party being aware that there may be a mental health and, ultimately, a fitness to plead issue. A 2006 study on the incidence of low IQ and mental retardation among murder defendants referred for pre-trial evaluation found that offenders with a low IQ had more previous convictions than their counterparts without intellectual disability and had rarely been diagnosed as having intellectual disability.77 While some form of forensic screening would seem to be part of the solution, the legal profession also has a responsibility to ensure that lawyers working in areas of mental health law are familiar with possible indications of mental illness or impairment and ask specific questions of clients who they suspect may be mentally unwell or intellectually impaired.

In addition, court forensic services ought to have some system whereby previous dealings with a mentally impaired offender are flagged so that relevant medical histories can be obtained and appropriate disposition options explored.

Court process

Because it is seen as an adjunct to the criminal trial process, the determination of unfitness to stand trial is commonly viewed as an adversarial procedure, with corresponding rights to call and lead evidence, cross–examination and re-examination, and a ruling by an impartial judge based on the strongest case presented. However,

74 [1958] VicRp 9; [1958] VR 45 at 48.

75 P v Police [2006] NZHC 1681; [2007] 2 NZLR 528 540 at [43].

76 See R v McKay [2009] NZCA 378; [2010] 1 NZLR 441 (CA) at [34].

77 E Sondenaa, K Rasmussen and J A Nottestad “Forensic issues in intellectual

disability” (2008) 21 Current Opinion In Psychiatry 449 at 450.

it may be argued that this approach misconceives the process. On another view a fitness inquiry is not an adversarial contest but a more fundamental inquiry, namely, an investigation to determine whether there is a competent adversary. It has been held that the question being fundamental, it falls outside the adversarial system.78 As such it is arguable whether considerations of onus of proof have any relevance in such an inquiry, which does not involve any issue joined between the parties such that the accused should be regarded as bearing the onus of an issue or be required to begin.79 Further, legislation in some jurisdictions specifies that an inquiry into unfitness is “not to be conducted in an adversary manner”.80

The problem with an adversarial approach in this context is that both parties may instruct their own experts to offer an opinion on the defendant’s unfitness to stand trial. The Court ultimately decides the issue of fitness based on this advice. It is common knowledge that experts tend to agree with the side that instructed them, given that lawyers will often choose experts who are most likely to support the case they are advancing.81 Yet if the purpose of the exercise is to assess whether this person is mentally competent to undergo a trial an inquisitorial hearing would seem to be a more effective means of achieving that end. The idea that an accredited panel, consisting of appropriately qualified health professionals, could assist the judge at such a hearing, makes sound sense and would be a more likely means of achieving the desired impartiality amongst experts.82

A separate court

Allied to the proposal for an inquisitorial approach to fitness inquiries is the idea of a dedicated Mental Health Court to deal with forensic mental health issues, including fitness to plead, insanity and sentencing of mentally impaired offenders. Mental health courts have been conceived in response to the dramatic increase in mentally disordered accused persons entering the criminal justice system in many jurisdictions that has followed the process of deinstitutionalisation.83 They represent an innovative approach to addressing the needs of people who have been alienated and marginalised by both the criminal justice and mental healthcare systems by applying therapeutic jurisprudence paradigms in an attempt to reduce the criminalisation of mentally disordered persons.84

The Queensland Mental Health Court was established under the Mental

Health Act 2000 to decide, amongst other things, whether an offender

78 [2001] NSWCCA 53; (2001) 121 A Crim R 509 at 519, per Kirby J.

79 See R v Davies (1853) 6 Cox CC 326; R v Presser[1958] VicRp 9; [1958] VR 45 at 49–50 per

Smith J.

80 See eg Mental Health (Criminal Procedure) Act 1990 (NSW), s 12 (2).

81 Rogers et ors, above n 20, at 826.

82 Ibid at 829.

83 See RD Schneider “ Mental health courts”(2008) 21 (5) Current Opinion

in Psychiatry 510-513.

84 Ibid at 513.

was unfit for trial. The Court, which is constituted by a Supreme Court judge assisted by two experienced psychiatrists who advise the Court on medical or psychiatric matters, has a broad jurisdiction in respect of deciding the state of mind of persons charged with criminal offences.

In the complex area of unfitness to stand trial, a mental health court offers the prospect of considerable legal and medical expertise being brought to bear in resolving outstanding issues of mental health status and because of the nature of its jurisdiction, would reduce the risk of mentally impaired and unfit defendants processing through the court system with their mental health needs unrecognised.

A capacity focus

An important criticism of the rules governing unfitness to plead in the English common law jurisdictions is that they are unduly narrow and are based exclusively on cognitive abilities. The focus on a person’s intellectual ability ignores the fact that many offenders suffering from a mental impairment may have the intellectual ability to participate in a trial, but may suffer from delusions or other psychotic processes which makes it impossible for them to make true choices which are in their own best interests.85 This has led to the justified criticism that the unfitness to stand trial rules in many jurisdictions, and notably the United Kingdom, discriminate against criminal defendants and raise serious questions about the fairness of current processes and of those trials where borderline decisions in favour of unfitness have been made.86

The essence of this critique is that case law on fitness to plead limits the operation of the rules to people who lack the necessary intellectual or communication abilities, while excluding those who, while reasonably intelligent and articulate, are so deluded that they cannot do themselves justice.87 Scott-Moncrieff and Vassall-Adams argue that the failure by the English Parliament to apply tests for capacity in the Mental Capacity Act

2005 to assessments of fitness to stand trial, strains compatibility with the European Convention on Human Rights and has exposed a “yawning gap” between the outmoded test for unfitness and current medical understanding and legal practice in the field of incapacity.88 They argue that there are compelling grounds for believing the current criminal law position is unsustainable and ripe for challenge.89

Although New Zealand does not (yet) have mental capacity legislation in similar terms to the Mental Capacity Act 2005 in England, identical issues arise in the determination of unfitness to stand trial. The fact is that seriously mentally ill/ psychotic offenders are relatively unprotected by the current fitness rules as compared to their intellectually impaired

85 L Scott- Moncrieff and G Vassall- Adams “Yawning Gap”(2006) Counsel

14 at 15.

86 Ibid.

87 Ibid at 15.

88 Ibid.

89 Ibid.

counterparts. Clearly, a thorough review of how capacity constructs impact trial competence is called for.

6. Conclusion

Unfitness to stand trial, or adjudicative competence, is a complex construct.90 However, although the notion that a defendant should be mentally able to participate in court proceedings has been present in Western law from the 14th century AD,91 the rules governing trial competence have undergone relatively little refinement in the last 150 or so years. A particular concern addressed in this article is the fact that the unfitness to plead rules, as they have evolved, have tended to focus on an offender ’s intellectual capacity to perform some basic skills and are largely unconcerned with whether or not the accused is actually capable of doing himself or herself justice in a trial. Indeed, a high degree of mental abnormality has been held by the courts not to be inconsistent with fitness to stand trial. We would suggest that this ruling, said to amount to “admirable directions” on the meaning of fitness to stand trial,92 severely strains the notion of what it means to be able to “effectively” participate in a criminal trial, and requires serious reconsideration. While the law in many jurisdictions has long insisted that the threshold for trial competence is “low”, this reveals little about the actual capacities necessary to be able to participate in and follow the wide perambulations of a criminal trial.

In some jurisdictions case law expansion of the restrictive common law criteria for unfitness has rendered the criteria less burdensome and permitted greater latitude to courts in assessing relevant trial capacities. However, reluctance by the courts to fully embrace the distinction between foundational and decisional incompetence and the maintenance of a unitary standard for fitness determinations, has meant that most defendants have been held to a high standard of trial performance that a significant number are incapable of achieving. This has meant that many mentally impaired offenders may have been required to undergo criminal trials because they have been judged to have a basic level of competence and regardless of their having made manifestly bad decisions in the course of trial which, on any view, must have been contrary to their best interests.

It is to be hoped that future reviews of the fitness to plead rules will address these concerns, with a view to promoting greater consistency in the manner in which the fitness criteria are applied, and ultimately to revision of the criteria themselves to ensure their consistency with general capacity principles. In New Zealand this will require a major overhaul of the CPMIPA, given strong judicial criticism of current fitness provisions,

90 S E Dawes, B W Palmer, D V Jeste “Adjudicative competence” (2008) 21

Current Opinion in Psychiatry 490 at 493.

91 Ibid at 490.

92 See R v John M [2004] Mental Health Law Reports 86, 90 at para 31.

with a view to achieving legislative reform that promotes fairness for mentally impaired offenders. The dangers of trying offenders who are legally incompetent are well known. Law reform must aim to eliminate this risk as far as possible and ensure procedures which are accessible and well understood, and which produce reliable outcomes.

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