Commentary: Competence assessment practices in England and Australia versus the United States.

The adversarial process cannot even begin until the accused enters a meaningful plea. In medieval times those accused of offenses against the Crown could avoid confiscation of their property, if not save their lives, by refusing to enter a plea. If they refused to plead, the accused could be starved or literally pressed for an answer by the placement of increasingly heavy weights onto his chest until a plea was entered or he was crushed. The specific criteria for unfitness to plead emerged in England during the 19th century in the form of case law. The case of R. v. Frith established a general commitment to procedural fairness to the effect that accused individuals must be able to understand and participate in criminal proceedings against them. This was further developed in the 1831 trial of Ester Dyson (as reported by Walker in 1968) a deaf woman who killed her illegitimate child. This decision was in its turn further clarified in R. v. Pritchard, which continues to form the basis of the common law criteria for fitness, although the procedures and outcomes pertaining to findings of unfitness are now defined by legislation. In the United States, a somewhat similar course was followed with regard to what became known as competency to stand trial. Influential decisions in the 19th century were superseded, not by legislation but by Supreme Court decisions beginning with Dusky v. U.S. and proceeding through Pate v. Robinson and Drope v. Missouri. In Australia, the common law of England and Wales was gradually modified in a number of local decisions, the most influential of which was R. v. Presser. In the past few years, several states have introduced legislation governing both the criteria and procedures for fitness to stand trial (e.g., Ref. 10). The different historical routes to establishing criteria for competency and fitness have produced differences in both the form and the content of the procedures used to establish these matters. In the United States, the emphasis has been on what are regarded as the two main components of competency, the cognitive capacity to comprehend relevant legal concepts and procedures, and the volitional element of being able to use such information appropriately in the legal environment to assist in one’s defense and advance one’s own case. This approach emphasizes broad mental capacities of which the competencies in the legal arena are specific instances. In practice, it often leads to a requirement that the accused be able to acquire relatively detailed knowledge about the judicial process and its relevance to his own defense. I was surprised when visiting a forensic hospital in the United States to find that patients awaiting competency hearings were receiving quite detailed lessons on court procedures and were even provided the opportunity to participate in mock trials in a fully equipped stage set of a court. In England and the commonwealth countries such as Australia, the criteria for fitness are expressed in terms of narrow and specific abilities rather than in broad capacities. For example the specific criteria for fitness to plead are laid down in the State of Victoria’s legislation as: 1. Understanding of the nature of the charge 2. Ability to enter a plea 3. Ability to understand the nature of the trial and follow its course Dr. Mullen is Professor of Forensic Psychiatry, Monash University, Fairfield, Victoria, Australia. Address correspondence to: Paul E. Mullen, MB, BS, Forensic Health Services, Academic Unit, Locked Bag 10, Fairfield, Victoria 3078, Australia. E-mail: [email protected]