The Role of Canadian Psychologists in Conducting Fitness and Criminal Responsibility Evaluations.

Abstract

Abstract Historically, only physicians, typically psychiatrists, were permitted to conduct forensic mental health evaluations for the courts. In the United States, the courts have affirmed increasing acceptance of involvement of psychologists since the 1940s. In Canada, the legal system continues to adhere to the assumption of medical dominance to a large extent. For instance, Canadian legislation requires that a physician conduct court-ordered assessments of fitness to stand trial and criminal responsibility. In this article, relevant Canadian law is compared to American law, and empirical research on the ability of psychologists to assess fitness and criminal responsibility is discussed. These legal and empirical reviews are used to generate policy recommendations regarding the qualifications of forensic examiners. Criminal courts rely heavily on mental health professionals to assess forensic mental health issues, such as fitness to stand trial and criminal responsibility. Traditionally, only those with medical training qualified for this role (Melton, Petrila, Poythress, & Slobogin, 1997). In the 1940s, the assumption of medical dominance began to erode in the United States (Hattaway & Poythress, 1977). The American legal system has, since then, increasingly allowed and demonstrated acceptance for the assessments and testimony of psychologists (Farkas, DeLeon, & Newman, 1997). Similar trends have occurred in other countries such as Australia (Freckelton, 1997, 1998). In Canada, the legal system continues to adhere to an assumption of medical dominance, although with inconsistency. Canadian psychologists play an important role in personal injury, custody and access, young offender, and dangerous offender assessments (Coles & Grant, 1999; Dobson, Dobson, & Ritchie, 1993; Pollack & Webster, 1993; Saunders, 2001). Within both the Youth Criminal Justice Act (2002, s. 13), which recently replaced the Young Offenders Act (1985, s. 13), and the dangerous offender legislation (Criminal Code of Canada, 1985, s. XXIV), psychologists are described as qualified to conduct assessments for the court. However, the Criminal Code of Canada specifies that a physician must conduct court-ordered assessments of fitness and criminal responsibility (s. 672.1). In light of the changes elsewhere, one might ask why Canadian legislators have been reluctant to allow psychologists to evaluate fitness and criminal responsibility. This article addresses this question and seeks to offer answers to the question of whether psychologists should be permitted to conduct these assessments. To set the background, the legal criteria for fitness to stand trial and criminal responsibility are outlined and a short history of the involvement of psychologists in the courts is presented. Following this, American and Canadian laws regarding the qualifications of experts are briefly reviewed and the relevant empirical research on the ability of mental health professionals to assess fitness and criminal responsibility is discussed. Finally, policy recommendations are offered based upon the legal and empirical reviews. Law Review Criteria for Fitness to Stand Trial and Criminal Responsibility Legal provisions regarding fitness to stand trial and the insanity defence were established to ensure that individuals with mental disorders or deficiencies are treated fairly and appropriately (Melton et al., 1997). Fitness to stand trial, or competency as it is called in the United States (see Dusky v. U.S., 1960), stems from the common law requirement that a defendant be able to conduct a proper defence. To be considered fit, a defendant must understand the nature of the charges and legal proceedings, and have the ability to communicate with counsel (Criminal Code of Canada, 1992). If a defendant lacks these abilities, on account of mental disorder, he or she can be found unfit. In this event, the trial is suspended until fitness is restored. …