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Case 2 – fitness for interview
Journal of Clinical Forensic Medicine (2003) 10, 106–108 2003 Elsevier Science Ltd and APS. All rights reserved. doi:10.1016/S1353-1131(03)00037-3
Case 2 – fitness for interview Morris Odell Forensic Physician, Victorian Institute of Forensic Medicine, and Hon. Senior Lecturer, Department of Forensic Medicine, Monash University, Southbank 3006, Australia
On day 4, the subject was seen by Dr. B. Various issues regarding the proposed police interview were discussed including the fact that the police would want to charge him, the possibility of getting legal representation, the possibility of a prison term and the issue of a family meeting. The subject stated that he was mentally ill at the time of the alleged offences and then stated ‘‘I am really good. My thoughts are fine. I am not confused. I am not suicidal’’. He said that he would not kill himself on discharge. During the examination, he was initially described as being agitated but was also pleasant and cooperative. He denied frankly psychotic symptoms such as auditory hallucinations and paranoid ideas but still planned to continue praying for people. On day 5, the subject was described as fatuous with no perceptual disturbance. The following day he was described as having an elevated mood. He was cracking jokes and laughing, allowing his laughter to progress into loud cackling and looking defiantly at other people. He continued having an elevated mood with a high profile, jumping towards the ceiling, butting his head and yelling, saying he wanted to get out of here. He was given some medication to settle him. Later that day, he was seen by Dr. B together with his family. He was described as adopting a disinterested approach with socially inappropriate behaviour such as belching. On day 7, he was described as having ‘‘erratic’’ behaviour and escalating agitation. He climbed the fence of the hospital and was noted as being agitated and irritable. On the same day, the subject was again seen by Dr. A. The contents of a letter for court was reviewed and explained and the potential consequences and train of events regarding interview, decision, charges, review by the magistrate and options for remand were discussed. He appeared to understand this. The treatment plan was to discharge the subject once he had found accommodation and from a mental state perspective he was settled. Ongoing treatment was proposed with an injectable depot preparation. There was no mention of specific consent from the subject for the police interview.
HISTORY The subject was a 25-year-old man who had a past history of chronic schizophrenia and cannabis abuse. On day 1, he was admitted to hospital as an involuntary psychiatric patient. This followed an incident where he was preaching religion at a hospital after hearing voices telling him to do so. He admitted to increased use of marijuana but he denied other drug use. He said that he did not want to live anymore because life was too hard and that he wanted to join Jesus Christ. He then took a large kitchen knife stating he was going to use it to kill himself. He became threatening and asked people to leave before he was hurt. At this stage, the police were called to take him to the psychiatric hospital. While he was handcuffed he confessed to police that he had committed two armed robberies. This led to requests by police to interview the subject after he was treated. When he was admitted, he was given a dose of temazepam and slept overnight. He was then assessed on day 2, by a psychiatrist, Dr. A. The subject reiterated that he had been feeling lonely and bored and felt like killing himself. He said he felt the crisis team was of the view that he was not really going to kill himself, therefore, he took a knife and cut his wrists to demonstrate his resolve to them. Dr. A decided to continue his current treatment. The subject denied suicidal ideas. He was interacting appropriately with others but was fatuous in his affect. Over the next few days his condition continued to improve. On several occasions he stated that he no longer had any thoughts of self harm and saw this as a reason for him to be able to leave hospital. By day 3, he was spending quiet time in his room and expressing concern about his possible involvement in armed robberies and pending charges. He was able to socialize well with other patients. Dr. Morris Odell BE, MB, BS, FRACGP, DMJ, Forensic Physician, Victorian Institute of Forensic Medicine, and Hon. Senior Lecturer, Department of Forensic Medicine, Monash University, Southbank 3006, Australia. 106
Forensic casebook 107 At 6:45 a.m. on day 8, the subject was collected by police from the hospital and taken to a police station. He was interviewed and then after an hour or two in a cell, was bailed by a magistrate to remain in hospital. He returned later that night and was described as being in a highly elevated state, smiling and giggling. He was given medication to calm him. The following day he was described as being unchanged and compliant. He was quite concerned regarding his upcoming court appearances. The next morning, 10 days after his admission, the subject was noted to be absent from the ward and was subsequently found to have committed suicide by jumping under a train. Drug treatment Prior to his admission he was being treated with fortnightly injections of 100 mg of depot zuclopenthixol decanoate (ZPD). The initial plan on admission was to continue the current treatment and he was given an injection of 100 mg of ZPD on day 2. On the day prior to the police interview, the dose was altered to 200 mg fortnightly and he was given an injection of 200 mg. The subject was also given 12 ‘‘as required’’ doses of chlorpromazine during his admission including 100 mg after returning from the interview two days prior to his death. Interview The interview was tape recorded and conducted in the presence of an independent third person/appropriate adult who saw no need to intervene. There was nothing in this interview to suggest that the subject was acutely affected by his mental illness. He appeared to understand all aspects of the interview and was able to describe to police the significance of the various questions and statements regarding his rights that were put to him. During the interview, he answered questions promptly and coherently and in a sensible and logical fashion. At one point, he described suffering from a schizophrenic illness and this was having an effect on his thought process to the extent that the was not aware that what he was doing was wrong. He described himself always doing things that he knew were wrong but could not explain why he did them.
QUESTION This man was not seen by a forensic doctor prior to being interviewed. If he had been, discuss the issues involved in determining this manÕs fitness to be interviewed. What are the important issues?
DISCUSSION The forensic medical issues in this case are: 1. Whether the subject was fit to be interviewed, and 2. Whether the interview could have had any bearing on his decision to suicide. The assessment for fitness to be interviewed is a specialised examination commonly performed by forensic medical practitioners. In some respects it is similar to a medical or psychiatric examination undertaken for other purposes but the emphasis is on a specialised medico-legal assessment. There is no strict definition of fitness to be interviewed, but in general terms it includes the ability to: • Be aware of his/her surroundings. • Understand the reason why he/she is being questioned. • Understand the possible implications of the interview. • Understand questions and answer them to his/her best advantage. This implies a clear consciousness unaffected by physical or mental illness, injury or drug/alcohol effects. • Exercise judgement unimpaired by the above conditions. • Not be in an excessively suggestible state as a result of the above conditions. • ‘‘The detainee should also be able to cope with a stressful interview. . .and instruct solicitors’’.1 These are not the same criteria used in a purely medical or psychiatric assessment where the term ‘‘interview’’ has a different meaning as a psychiatric diagnostic procedure rather than as a part of a criminal investigation. The primary purpose of fitness for interview assessments is to address concerns about the detaineeÕs physical and mental well being in order to lessen the risk of an unsafe or false confession.2 It not necessarily to determine whether the detainee will be truthful in the interview but to determine whether he/she can ‘‘calculate their own advantage’’ i.e., represent him/her self in the most favourable way having regard to their circumstances. This includes making the decision whether to consent to or comply with the interview, and whether to ask for legal representation. A secondary but nevertheless important part of the assessment is also to determine whether the whole situation of the interview would have an unacceptably detrimental effect on the subject. The assessment for fitness to be interviewed usually begins with obtaining as much history as possible regarding the patient and the case. This includes details of recent and past medical and psychiatric
108 Journal of Clinical Forensic Medicine conditions, medications and illicit drug use, behaviour of the person, likely charges, and possible outcomes of the interview (incarceration, bail, release, etc). The patient is then examined mentally and/or physically depending on the circumstances. A vital part of the assessment is to determine the subjectÕs orientation and understanding of their circumstances. Finally, an opinion is arrived at in the light of all the above information. Opinions regarding fitness to be interviewed are always problematic when made after the event. In this case, there appears to have been no obvious effect of the subjectÕs illness on his interview as judged by the way in which he answered questions on the tape recording. The converse, however, may not have been the case. The subject was suffering from a relapse of a chronic mental illness whose features are those (among others) of thought disorder, lack of insight, plasticity (i.e., increased suggestibility in thought and deed) and inappropriateness of affect. He was exhibiting features of this condition both before and after the police interview. His regular medication had been increased the day prior to the interview suggesting that his condition was not yet stabilized. He required pro re nata treatment with a major tranquillizer both before and after the interview. Under these circumstances it is likely that any decision to attend the interview, replies during the interview and the decision not to have legal representation may have been affected to some extent by the illness. On the basis of the history detailed above, this man would most probably not have been judged fit to be interviewed had he been seen by a forensic physician on the day of the interview. Apart from any possible findings on mental-state examination, the reasons for this would have been the recent psychotic episode, his on-going abnormal behaviour and his requirement for increased medication. A secondary issue would have been his involuntary patient status although this is not necessarily an impediment to being judged fit for interview in all cases.
The foregoing implies the question of when would he have been fit for interview. In order for him to have been fit for interview there would have had to be enough time for the recently increased dose of medication to act and there would also have to have been a significant period (1–2 weeks) of documented stable behaviour not requiring additional doses of a major tranquillizer. With regard to the second question, in the absence of a note it is never possible to say what a suicideeÕs state of mind was immediately before the act. This is even more difficult when the person was suffering from a psychotic illness. However, there were a number of factors that increased the subjectÕs risk of suicide including: • Being a young single male. • Absence of a familiar support person or lawyer during the contact with police and the justice system. • History of drug abuse. • Recent attempts at suicide or self-harm especially as a response to stress. • Troubling experiences that challenge coping ability. • Schizophrenia, not yet adequately controlled – a condition that severely distorts and reduces the ability to cope with stress. • The prospect of a jail sentence. It is not unreasonable to expect that there should have been some anticipation by his carers that the experience of being interviewed could have increased the risk of a reaction such as worsening of his condition or even another suicide attempt.
REFERENCES 1. Norfolk GA. Fitness to be Interviewed – a proposed definition and scheme of examination. Med Sci Law 1997; 37(3): 228–234. 2. Gall JA, Freckleton I. Fitness for interview: current trends, views and an approach to the assessment procedure. J Clin Forens Med 1999; 6: 213–223.
Case 2 – fitness for interview Morris Odell Forensic Physician, Victorian Institute of Forensic Medicine, and Hon. Senior Lecturer, Department of Forensic Medicine, Monash University, Southbank 3006, Australia
On day 4, the subject was seen by Dr. B. Various issues regarding the proposed police interview were discussed including the fact that the police would want to charge him, the possibility of getting legal representation, the possibility of a prison term and the issue of a family meeting. The subject stated that he was mentally ill at the time of the alleged offences and then stated ‘‘I am really good. My thoughts are fine. I am not confused. I am not suicidal’’. He said that he would not kill himself on discharge. During the examination, he was initially described as being agitated but was also pleasant and cooperative. He denied frankly psychotic symptoms such as auditory hallucinations and paranoid ideas but still planned to continue praying for people. On day 5, the subject was described as fatuous with no perceptual disturbance. The following day he was described as having an elevated mood. He was cracking jokes and laughing, allowing his laughter to progress into loud cackling and looking defiantly at other people. He continued having an elevated mood with a high profile, jumping towards the ceiling, butting his head and yelling, saying he wanted to get out of here. He was given some medication to settle him. Later that day, he was seen by Dr. B together with his family. He was described as adopting a disinterested approach with socially inappropriate behaviour such as belching. On day 7, he was described as having ‘‘erratic’’ behaviour and escalating agitation. He climbed the fence of the hospital and was noted as being agitated and irritable. On the same day, the subject was again seen by Dr. A. The contents of a letter for court was reviewed and explained and the potential consequences and train of events regarding interview, decision, charges, review by the magistrate and options for remand were discussed. He appeared to understand this. The treatment plan was to discharge the subject once he had found accommodation and from a mental state perspective he was settled. Ongoing treatment was proposed with an injectable depot preparation. There was no mention of specific consent from the subject for the police interview.
HISTORY The subject was a 25-year-old man who had a past history of chronic schizophrenia and cannabis abuse. On day 1, he was admitted to hospital as an involuntary psychiatric patient. This followed an incident where he was preaching religion at a hospital after hearing voices telling him to do so. He admitted to increased use of marijuana but he denied other drug use. He said that he did not want to live anymore because life was too hard and that he wanted to join Jesus Christ. He then took a large kitchen knife stating he was going to use it to kill himself. He became threatening and asked people to leave before he was hurt. At this stage, the police were called to take him to the psychiatric hospital. While he was handcuffed he confessed to police that he had committed two armed robberies. This led to requests by police to interview the subject after he was treated. When he was admitted, he was given a dose of temazepam and slept overnight. He was then assessed on day 2, by a psychiatrist, Dr. A. The subject reiterated that he had been feeling lonely and bored and felt like killing himself. He said he felt the crisis team was of the view that he was not really going to kill himself, therefore, he took a knife and cut his wrists to demonstrate his resolve to them. Dr. A decided to continue his current treatment. The subject denied suicidal ideas. He was interacting appropriately with others but was fatuous in his affect. Over the next few days his condition continued to improve. On several occasions he stated that he no longer had any thoughts of self harm and saw this as a reason for him to be able to leave hospital. By day 3, he was spending quiet time in his room and expressing concern about his possible involvement in armed robberies and pending charges. He was able to socialize well with other patients. Dr. Morris Odell BE, MB, BS, FRACGP, DMJ, Forensic Physician, Victorian Institute of Forensic Medicine, and Hon. Senior Lecturer, Department of Forensic Medicine, Monash University, Southbank 3006, Australia. 106
Forensic casebook 107 At 6:45 a.m. on day 8, the subject was collected by police from the hospital and taken to a police station. He was interviewed and then after an hour or two in a cell, was bailed by a magistrate to remain in hospital. He returned later that night and was described as being in a highly elevated state, smiling and giggling. He was given medication to calm him. The following day he was described as being unchanged and compliant. He was quite concerned regarding his upcoming court appearances. The next morning, 10 days after his admission, the subject was noted to be absent from the ward and was subsequently found to have committed suicide by jumping under a train. Drug treatment Prior to his admission he was being treated with fortnightly injections of 100 mg of depot zuclopenthixol decanoate (ZPD). The initial plan on admission was to continue the current treatment and he was given an injection of 100 mg of ZPD on day 2. On the day prior to the police interview, the dose was altered to 200 mg fortnightly and he was given an injection of 200 mg. The subject was also given 12 ‘‘as required’’ doses of chlorpromazine during his admission including 100 mg after returning from the interview two days prior to his death. Interview The interview was tape recorded and conducted in the presence of an independent third person/appropriate adult who saw no need to intervene. There was nothing in this interview to suggest that the subject was acutely affected by his mental illness. He appeared to understand all aspects of the interview and was able to describe to police the significance of the various questions and statements regarding his rights that were put to him. During the interview, he answered questions promptly and coherently and in a sensible and logical fashion. At one point, he described suffering from a schizophrenic illness and this was having an effect on his thought process to the extent that the was not aware that what he was doing was wrong. He described himself always doing things that he knew were wrong but could not explain why he did them.
QUESTION This man was not seen by a forensic doctor prior to being interviewed. If he had been, discuss the issues involved in determining this manÕs fitness to be interviewed. What are the important issues?
DISCUSSION The forensic medical issues in this case are: 1. Whether the subject was fit to be interviewed, and 2. Whether the interview could have had any bearing on his decision to suicide. The assessment for fitness to be interviewed is a specialised examination commonly performed by forensic medical practitioners. In some respects it is similar to a medical or psychiatric examination undertaken for other purposes but the emphasis is on a specialised medico-legal assessment. There is no strict definition of fitness to be interviewed, but in general terms it includes the ability to: • Be aware of his/her surroundings. • Understand the reason why he/she is being questioned. • Understand the possible implications of the interview. • Understand questions and answer them to his/her best advantage. This implies a clear consciousness unaffected by physical or mental illness, injury or drug/alcohol effects. • Exercise judgement unimpaired by the above conditions. • Not be in an excessively suggestible state as a result of the above conditions. • ‘‘The detainee should also be able to cope with a stressful interview. . .and instruct solicitors’’.1 These are not the same criteria used in a purely medical or psychiatric assessment where the term ‘‘interview’’ has a different meaning as a psychiatric diagnostic procedure rather than as a part of a criminal investigation. The primary purpose of fitness for interview assessments is to address concerns about the detaineeÕs physical and mental well being in order to lessen the risk of an unsafe or false confession.2 It not necessarily to determine whether the detainee will be truthful in the interview but to determine whether he/she can ‘‘calculate their own advantage’’ i.e., represent him/her self in the most favourable way having regard to their circumstances. This includes making the decision whether to consent to or comply with the interview, and whether to ask for legal representation. A secondary but nevertheless important part of the assessment is also to determine whether the whole situation of the interview would have an unacceptably detrimental effect on the subject. The assessment for fitness to be interviewed usually begins with obtaining as much history as possible regarding the patient and the case. This includes details of recent and past medical and psychiatric
108 Journal of Clinical Forensic Medicine conditions, medications and illicit drug use, behaviour of the person, likely charges, and possible outcomes of the interview (incarceration, bail, release, etc). The patient is then examined mentally and/or physically depending on the circumstances. A vital part of the assessment is to determine the subjectÕs orientation and understanding of their circumstances. Finally, an opinion is arrived at in the light of all the above information. Opinions regarding fitness to be interviewed are always problematic when made after the event. In this case, there appears to have been no obvious effect of the subjectÕs illness on his interview as judged by the way in which he answered questions on the tape recording. The converse, however, may not have been the case. The subject was suffering from a relapse of a chronic mental illness whose features are those (among others) of thought disorder, lack of insight, plasticity (i.e., increased suggestibility in thought and deed) and inappropriateness of affect. He was exhibiting features of this condition both before and after the police interview. His regular medication had been increased the day prior to the interview suggesting that his condition was not yet stabilized. He required pro re nata treatment with a major tranquillizer both before and after the interview. Under these circumstances it is likely that any decision to attend the interview, replies during the interview and the decision not to have legal representation may have been affected to some extent by the illness. On the basis of the history detailed above, this man would most probably not have been judged fit to be interviewed had he been seen by a forensic physician on the day of the interview. Apart from any possible findings on mental-state examination, the reasons for this would have been the recent psychotic episode, his on-going abnormal behaviour and his requirement for increased medication. A secondary issue would have been his involuntary patient status although this is not necessarily an impediment to being judged fit for interview in all cases.
The foregoing implies the question of when would he have been fit for interview. In order for him to have been fit for interview there would have had to be enough time for the recently increased dose of medication to act and there would also have to have been a significant period (1–2 weeks) of documented stable behaviour not requiring additional doses of a major tranquillizer. With regard to the second question, in the absence of a note it is never possible to say what a suicideeÕs state of mind was immediately before the act. This is even more difficult when the person was suffering from a psychotic illness. However, there were a number of factors that increased the subjectÕs risk of suicide including: • Being a young single male. • Absence of a familiar support person or lawyer during the contact with police and the justice system. • History of drug abuse. • Recent attempts at suicide or self-harm especially as a response to stress. • Troubling experiences that challenge coping ability. • Schizophrenia, not yet adequately controlled – a condition that severely distorts and reduces the ability to cope with stress. • The prospect of a jail sentence. It is not unreasonable to expect that there should have been some anticipation by his carers that the experience of being interviewed could have increased the risk of a reaction such as worsening of his condition or even another suicide attempt.
REFERENCES 1. Norfolk GA. Fitness to be Interviewed – a proposed definition and scheme of examination. Med Sci Law 1997; 37(3): 228–234. 2. Gall JA, Freckleton I. Fitness for interview: current trends, views and an approach to the assessment procedure. J Clin Forens Med 1999; 6: 213–223.