Assessing mental competence to stand trial
Every jurisdiction has its own rules, regulations and practice in respect of trials. One key factor in most jurisdictions is the mental competence of the accused. Those accused may not have to stand trial if they are held to have been incompetent at the time of the alleged offence. Youth may be held in most jurisdictions to preclude competence. According to Amnesty International more than 110 countries, whose laws still provide for the death sentence for some offences, have laws specifically excluding the execution of child offenders or may be presumed to by being party to the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child or the American Convention on Human Rights. Despite this, seven countries are known, since 1990, to have executed prisoners who were under 18 at the time of their offence.
Mental illness or learning disability might similarly preclude competence. Competence usually includes some concept such as understanding the difference between right and wrong, and understanding how society regards the act of killing.
In such cases the accused will have to present evidence of his/her incompetence, and courts may well have to rule on disagreements between experts. Forensic psychiatrists are used to presenting such evidence; occasionally a prison doctor may also be called to give evidence as he/she might have been caring for the accused as a remand prisoner or as a prisoner convicted for another crime. Some jurisdictions rarely accept pleas of incompetence.
If called to give evidence of this type, doctors will be aware that the quality of their evidence could make the difference between being on trial for his/her life and incarceration for medical/mental health care. Some doctors have argued that in giving evidence of this sort, doctors are agreeing that some can be subject to capital trials - i.e. those for whom no argument of incompetence can be made. Other doctors have argued that the expert forensic psychiatrist acts as an agent of the court and is therefore working outside the ethical framework that constrains all other activities by doctors. Most ethical writers, or indeed most forensic psychiatrists do not accept this reasoning. Instead, most would argue that in these circumstances doctors are demonstrating the tension between duties to individuals and those to society, and the same ethical framework applies as does to work outside the forensic field. Despite these concerns it is generally accepted that giving evidence in a capital trial does not for most doctors raise an ethical problem, and it is certainly not ethically prohibited.