Chapter 3: Assessing the Accused
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2022
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Forensic Mental Health: From Assessment to Recovery
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Edutech
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Abstract
This text examines the assessment of criminal defendants within the South African forensic mental health system under Sections 77, 78, and 79 of the Criminal Procedure Act 51 of 1977 (CPA). It addresses the complexities that emerge from the uncodified nature of South African substantive criminal law, highlighting a recurrent lack of mutual understanding between mental health practitioners and the courts regarding the exact elements of criminal liability (actus reus versus mens rea). The chapter details the multi-departmental referral process, contrasting South Africa’s system—where entry is almost exclusively precipitated by a criminal offense—with systems like the United Kingdom's. It critiques the historical conflation of fitness to stand trial (Section 77) and criminal responsibility (Section 78) by practitioners, advocating for separate inquiries to preserve procedural justice. Furthermore, the author evaluates the statutory thresholds of adjudicative competence, drawing comparisons with the United States' Dusky standard to structure evaluations. It outlines the legal and constitutional evolutions following the De Vos (2015) ruling and the Criminal Procedure Amendment Act 4 of 2017, which granted courts the discretion to order less restrictive care for unfit defendants instead of relying on automatic, indefinite institutionalization. Finally, the text analyzes the limitations of the classic cognitive and conative tests of insanity, arguing that modern neuropsychiatry challenges the law's artificial separation of cognition and impulse control.
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Reference:
Kaliski, S. 2022. Chapter 3: Assessing the Accused. In Forensic Mental Health: From Assessment to Recovery. S. Kaliski, Ed.Cape Town, South Africa: Edutech. 32. http://hdl.handle.net/11427/43303 .