...psycho-legal concepts relevant western fitness concepts. However, clinicians appear rely on traditional psychological measures of intelligence and psychopathology. The training of forensic graduates may help change this current situation. Meanwhile, currently practising clinicians undertaking fitness assessments need additional training in the use of appropriate fitness tools and in psycho-legal concepts.

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The notion of fitness to plead (1) reflects the basic premise that society should recognise only the acts of autonomous individuals (Melton, Petrila, Polythress, Slobogin, 1997). Alongside competency and mental impairment, fitness to plead is an essential part of the western criminal responsibility component of the judicial system. As such, it is crucial to find accurate ways to assess accurately these psycholegal concepts. A raft of fitness tools has been developed in an attempt to tie together legal concepts and psychological competencies. While some of these tools appear to display adequate psychometric properties (Nicholson, 1999), evidence suggests that forensic assessors continue to depend on their clinical skills rather than using psychometric fitness tools (Winick, 1995; Warren et al., 2006). This article aims to respond in part to the suggestion by Warren and her colleagues (2006) for researchers to review the process and product of forensic work by exploring the current state of fitness assessments and suggesting mechanisms for increasing the relevance of forensic assessments to the courts.

Fitness: Historical Context

Historical antecedents of fitness have been traced to English law (Melton et al., 1997). The concept of fitness has its roots in the concept that it would be unfair to subject certain types of individuals to trial (Melton et al., 1997). As early as the 1700s, both US and English law required that defendants plead to their charge/s (Blackstone, 1783; Frith's Case, 1790).

Fitness: Contemporary Western Legislative Perspective

In the United States, the Dusky Defence (Dusky v United States, 1960) underpins the notion of fitness (Zapf & Roesch, 2005). According to the Dusky Defence, a defendant must have sufficient present ability to consult with his or her attorney and a rational as well as a factual understanding of proceedings against him or her (Zapf & Roesch, 2005; Melton et al., 1997). The US approach emphasises broad mental capacities of which the legal competencies are specific instances (Barry-Walsh & Mullen, 2004).

Although both Canada and the United States have their roots in English common law, case law in the two jurisdictions has led to somewhat different conceptualisations of fitness to stand trial. In Canada, the issue of fitness has been interpreted as meaning that individuals charged with a criminal offence must be able to understand the nature of the proceedings, and be able to recount the necessary facts pertaining to the offence to counsel so that counsel can present a proper defence (Zapf & Roesch, 2005; Regina v Taylor, 1992). A defendant is determined unfit to stand trial if he or she is unable, on account of mental disorder, to conduct a defence at any stage of the proceedings before a verdict is rendered, or to instruct counsel to do so, and in particular is unable, by reason of mental disorder, to (a) understand the nature or object or the proceedings, (b) understand the possible consequences of the proceedings, or (c) communicate with counsel (C.C.C., S.2, 1992).

In Australia, laws regarding fitness are not uniform; each state and territory has its own legislation. For example, s269H of the Criminal Law Consolidation Act 1996 (SA) deals with fitness in South Australian law:

A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is--

(a) unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or

(b) unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or

(c) unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.

While there are some differences between the United States, Canadian and South Australian legal definitions of fitness, the underlying assumption of these three jurisdictions is that the defendant must understand the nature of the proceedings, and be able to instruct counsel. It would then follow that assessments of fitness, including psychometric assessments, may be potentially employed across jurisdictions without significant compromises to reliability and validity.

Fitness: Assessment Consequences

Accurate assessment of fitness is important because the consequences of being found unfit to stand trial can be drastic (Howitt, 2002). Various criminal and civil commitment laws have been used to confine mentally ill offenders for periods longer than the typical sentence given to non-mentally disordered offenders (Andrews and Bonta, 2003). In the United Kingdom, mentally ill defendants may be compulsorily detained in hospital for indeterminate periods of time (Howitt, 2002). This is because mentally ill people are assumed to be more violent than other community members (Bonta & Andrews, 2003). A recent Australian report argued that those who are 'detained without being sentenced face indefinite detention in a secure mental health facility and may in fact never be released' (Commonwealth of Australia, 2006).

In the United States system, hospitalised defendants may be institutionalised in forensic hospitals or psychiatric...

NOTE: All illustrations and photos have been removed from this article.



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