Describe fitness to stand trial with its criteria and assessment.

The Question and the Law

• The distinction is fundamental and constantly confused: a person may be fit to stand trial but not responsible (well now, psychotic at the time); unfit but fully responsible (sane at the time, psychotic now); both; or neither
• The procedure is in BNSS sections 367 to 373 (formerly CrPC 328 to 339). Where the magistrate or court has reason to believe the accused is of unsound mind and incapable of making a defence, it shall inquire into the fact and have the accused examined by a medical officer, and may examine that officer as a witness
• If found unfit, the trial is postponed; the accused may be released on security for proper care and to prevent injury to themselves or others, or detained in safe custody in a place the state directs; and the case is reviewed periodically. When the accused becomes fit, the trial resumes
• The court, not the doctor, decides fitness; the doctor provides the medical evidence on which the court acts

Assessment

• What is assessed is function, not diagnosis — the question is what the person can and cannot do, and a severe diagnosis does not establish unfitness while a mild one does not exclude it
• How to assess — explain the charge in simple language and ask the person to explain it back; ask what "guilty" and "not guilty" mean and what would follow from each; ask them to give an account of the events; ask who their lawyer is and what they would tell them; and explain the roles of the judge, the prosecutor and the witnesses and test comprehension
• Common causes of unfitness — acute psychosis with thought disorder; severe depression with mutism or stupor; dementia; significant intellectual disability; delirium; and severe deafness or aphasia, which are not mental illnesses at all but may equally prevent participation
• Deafness and muteness are expressly recognised: a deaf-mute accused who can be made to understand through an interpreter or special educator is fit, and the BNSS provides for such assistance and for video recording
• Fitness may be restored by treatment, and this is the usual outcome; the assessment is therefore repeated and the trial resumes when the person recovers

Applied Aspects

• Answer the question that was asked; establish at the outset whether the court wants an opinion on fitness or on responsibility, because they are different assessments producing different reports
• Test each criterion explicitly and record the answers verbatim; a conclusion of unfitness without the questions and answers set out will not be accepted
• Assess function, not diagnosis; state what the person can and cannot do and why, rather than resting on the label
• Consider treatable causes and say so; most unfitness is temporary, and the report should indicate what treatment is needed and the likely time to recovery
• Do not overlook sensory and communication barriers; deafness, aphasia and language are frequent and are remediable with an interpreter rather than by declaring unfitness
• Remember the accused remains in custody or under supervision while unfit, sometimes for long periods; an opinion of unfitness is not a benign outcome and should be given only where it is justified