The assessment of fitness to stand trial for defendants with an intellectual disability: A proposed assessment procedure involving mental health professionals and lawyers

Abstract

Guidelines for mental health professionals regarding an assessment of fitness to stand trial procedure that is functional, context‐dependent and pragmatic (Grisso, 1988) are clearly required; no published tool exists in Australia. This article addresses Victorian legal criteria as outlined by the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 based upon the Presser criteria. It is argued that the procedure should include the lawyer's predictions regarding the complexity of the forthcoming trial and the ability of the defendant to communicate, together with the mental health professional's assessment of the capacity of the defendant to make decisions. Current difficulties in assessing fitness to stand trial will be presented and an assessment procedure to overcome them is proposed.