FITNESS TO STAND TRIAL AND MENTALLY CHALLENGED DEFENDANTS: EVALUATION OF THE FORENSIC PROCESS AND THE CRIMINAL CODE OF CANADA by Denise LaCombe Hitchen B.A., Carleton University, 1991 THESIS SUBMllTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS in the School of Criminology O Denise LaCombe Hitchen 1994 Simon Fraser University April, 1994 All rights reserved. This work may not be reproduced in whole or in part, by photocopy or other means, without permission of the author. APPROVAL NAME: Denise LaCombe Hitchen DEGREE: Master of Arts TITLE OF THESIS: Fitness to Stand Trial and Mentally Challenged Defendants: Evaluation of the Forensic Process and the Criminal Code of Canada Examining Committee: Chair: Robert J. Menzies, Ph.D. ----------------z--------------------------------------- Derek Eaves, F.R.C.P. (C) External Examiner Executive Director British Columbia Forensic Psychiatric Services Commission 1 hereby grant to Simn Fraser University the right to lend my thesis, project or extended essay (the title of wfiich is shcwn below) to users of the Simon Fraser University Library, and to make partial or single copies only fo; such users or in response to a request fr~mthe library of any other university, or other educational institution, on its own behalf or for one of its users. I further agree that permissi~n for multiple copying of this wcr4 for scholarly purposes nay be granted by me or the Gean of Graduate Studies. It is understood that copying or publication of this work for financial gain shall not be allowed without my written permlsrion. Tit J e of Thes i S/V$$A$~~/F$~+~B$B/B$$#~ Fitness to Stand Trial and Mental ly Chall enged Defendants : Eva1 uation of the Forensic Process and the Criminal Code of Canada Denis LaCombe Hi tchen Abstract The goals of this exploratory research were to identify the relationship between fitness to stand trial and mental retardation among criminal defendants, and to evaluate the forensic processing of mentally challenged (MC) accused persons referred for fitness assessments. Over three one-year study periods, 52 files iere reviewed, comprised of files of 30 non-mentally challenged subjects, 8 MC subjects, and 14 dual-diagnosed subjects (i.e., persons diagnosed with an Axis I clinical syndrome as well as mental retardation) referred for court-ordered assessments at the Forensic Psychiatric Institute in British Columbia. A coding manual was used to code information on sociodemographic characteristics, psychiatric history, criminal history, and psychiatric assessment. MC patients were younger than other patients at the time of admission, had longer periods of institutionalization in mental health facilities, and exhibited different criminal behaviour as determined by past criminal convictions and current charges. Concerns were raised about diagnostic practices and the lack of standardized evaluations for fitness to stand trial. It was suggested, first, that symptoms of mental retardation, including borderline intellectual functioning, should be investigated, and second, that standardized psycholegal measures specifically designed for fitness evaluations of defendants with mental retardation should be utilized. The CAST-MR, for example, involves increased reliance on multiple-choice questions and vocabulary and syntax appropriate for MC adults whose fitness to stand trial is questioned. iii Utilization of standardized procedures has been advocated for some time. While the Criminal Code of Canada states the criteria for a finding of unfitness (i.e., on account of mental disorder, the accused is unable to understand the nature or object of the proceedings, to understand the possible consequences of the proceedings, or to communicate with counsel), the emphasis remains on mental disorder (i.e., disease of the mind), which is quite different from mental retardation. Standardized assessments and established procedures would assist in the forensic processing of defendants with mental retardation and would also restrict the flow of extraneous information or inappropriate recommendations from the clinic to the court, such as offering non-solicited opinions concerning long-term treatment plans beyond the competence issue. Acknowledgments First, I would like to thank my mentor and senior supervisor, Dr. Simon Verdun-Jones for his support and encouragement throughout my graduate programme and during my research. His wisdom in the area of law and mental health continues to be inspiring. Also, Dr. Bill Glackman of my Supervisory Committee was very helpful as I wandered in the field of research methods and statistics, and made the world of statistics a more interesting place for me. I am grateful to the Forensic Psychiatric Services Commission and Dr. Derek Eaves, the Executive Director, for supporting this project. Without the special help of Ms. Faye Grant, this project would still be underway. Ms. Linda Westfal and the staff at the Medical Records Department at the Forensic Psychiatric Institute were very accommodating. Dr. Hans Veiel and Dr. Michael Coles at the Psychology Department of the lnstitute kindly answered the many questions I asked. Finally, I would like to thank my family for their patience, support, and understanding, without which this project would not have been completed. Table of Contents Chapter Approval II Abstract iii Acknowledgments v Chapter One: Introduction Statement of Problem Research Objectives Chapter Two: The Meaning of Mental Retardation Intellectual Functioning Adaptive Functioning The Difference Between Mental Disorder and Mental Retardation Dual Diagnoses The Relationship Between Mental Handicap and Criminality MC Persons in the Criminal Justice System Summary Chapter Three: The Legal Framework of Fitness to Stand Trial Historical Background Criteria for Unfitness to Stand Trial The Meaning of "Disease of the Mind" Ability to Understand the Nature or Object of the Proceedings Ability to Understand the Possible Consequences of the Proceedings Ability to Communicate with Counsel Summary 0 Disposition of Unfit Accused Persons Fitness of MC Accused Persons Summary Chapter Four: Methods Setting Subjects Method Sampling Procedure The Research Question Research Concerns Chapter Five: Results Sociodemographic Characteristics Psychiatric History Previous Admission to Mental Health Institutions Intelligence Quotient Criminal History Current Charges Psychiatric Assessment Assessment Orders Admission to F.P.I. Psychological Testing DSM Diagnoses Developmental Disorders Psychoactive Substance Use Disorders Psychotic Disorders Mood Disorders Somatoform Disorders Sexual Disorders Psychological Factors Affecting Physical Condition Personality Disorders No Disorder or Diagnosis Clinical lmpressions Letter to Court and Discharge Status Treatment Recommendations Summary Non-MC Group MC Group Dual-Diagnosed Group Chapter Six: Discussion Sociodemographic Characteristics Gender Pge Race Psychiatric History Previous Admission to Mental Health Institutions Intelligence Quotient Criminal History Reaction of the Criminal Justice System Psychiatric Assessment Assessment Orders ;r Psychological Testing DSM Diagnoses Clinical lmpressions Letter to Court and Discharge Status Treatment Recommendations Implications of the Study Scope and Limitations of the Study Suggestions for Future Research vii Chapter Seven: Case Studies Case Vignette 1 Borderline MC Accused Recommended as Being Fit to Stand Trial Case Vignette 2 MC Accused Recommended as Being Fit to Stand Trial Case Vignette 3 MC Accused Recommended as Being Unfit to Stand Trial Discussion of Case Vignettes Summary Chapter Eight: Conclusions Appendix A: Coding Manual Appendix B: OffenceKharge Codes Appendix C: DSM-III-R Diagnostic Codes Appendix D: Psychometric Testing Codes Appendix E: Research Proposal and Approval References List of Cases viii List of Tables and Figures Table 1 Demographic Characteristics by Group Table 2 IQ Rating by Group Table 3 Previous Convictions by Criminal Code Offence and Group Table 4 Number of Charges by Criminal Code Offence and Group Table 5 Distribution of Psychometric Tests by Group Table 6 Summary of Diagnoses by Group Table 7 Fitness Decisions by Group Figure 1 Length of Admission by Group Chapter One Introduction In the past, mentally challenged (MC) individuals who committed criminal offences were considered "stupid and bad" (Brown & Courtless, 1968:1169). In 1690, for example, John Locke explained the difference between mental disorder and mental handicap: The insane (mentally disordered) had the power to reason but reasoned incorrectly, whereas the idiotic (mentally challenged) lacked the power to reason at all. The insane suffered a temporary loss of sense and the idiotic lacked a mind or sense at all (National Institute on Mental Retardation (NIMR), 1981:87). Ruedrich and Menolascino (1 984:49) state that, by the early 19001s, people came to support four distinct conclusions: (1) [tlhere were more retarded persons in our society than people realized; (2) the mentally retarded accounted for virtually all of the current social ills; (3) heredity was the major cause of mental retardation; and (4) because the "decadent" retarded appeared to reproduce faster than nonretarded citizens, society would soon be destroyed unless dramatic measures were taken. There was also much support during the first three decades of this century for the belief that "virtually every mentally retarded individual was a potential juvenile delinquent, and that most criminals had overt manifestations