Fitness Issues in the Context of Judicial Proceedings

Objective: This paper provides a conceptual, historical and legislative overview of fitness issues. These include fitness to be interrogated or charged, to plead, to be tried and to be sentenced in the context of Australia and New Zealand.Conclusions: Legislation regarding fitness issues needs to strike a balance between protecting the rights of mentally impaired defendants to a fair trial process and recognizing that mental illness in itself does not absolutely preclude participation in a trial process or necessarily diminish criminal responsibility. Although the key determinants of fitness seem to be the ability to cope with court processes and communicate with counsel, the application of clinical judgement to legal criteria is not always straightforward.