Low-threshold fitness test in South Africa and the USA : consequences for the fit but mentally ill accused

Abstract

An accused, who is unable to follow the criminal proceedings against him/ her on account of mental illness or intellectual disability, could be found unfit to stand trial. Whether the individual is indeed unfit is determined by the fitness test employed in the particular jurisdiction. This article considers the fitness tests employed in South Africa and the United States of America and points out the similarities and differences between them. The threshold for fitness in both these jurisdictions is low, resulting in the majority of accused persons sent for fitness assessments being found fit to stand trial. Amongst these accused are persons with serious mental illness. The article considers the impact of such a low threshold test on the fit but mentally ill accused and considers a therapeutic response to this category of accused persons.