Unfitness to Plead Consultation Responses - Law Commission ...

Summary of comments regarding proposals
Response
Regarding proposal 1 the majority of consultants were opposed to this change. Some
were of the view that the case for abandoning the Pritchard test and replacing it with a
capacity test is not made. The Pritchard test is usually interpreted in a cognitive way and
sets a high threshold but this seems reasonable. The capacity test in MCA can be very
broadly interpreted e.g. Ian Brady lacking capacity to consent to force feeding. It is
relatively new in its current form. The threshold could be set too low. The expertise
demanded by knowledge of the Pritchard test will be lost: there is a risk that psychiatrists
will not re-contextualise the MCA capacity test for the criminal context. They may find it
hard to resist a tendency to carry best interests into the equation and forget that the best
interests test does not apply in the criminal context. The level of knowledge and
expertise in using the MCA capacity test by psychiatrists in criminal proceedings is
untested in the UK to my knowledge. Ultimately, the Pritchard test lends itself to a
sufficient level of interpretation and utility.
Using a capacity test has to be specific to the decision in question. A trial can be a
dynamic process with multiple decisions required to be addressed. This would be make
the capacity act difficult to apply to a trial as a whole. The Pritchard criteria are well
placed to break down this complex process into broad categories of understanding that
are practical to assess. We would therefore need clear guidance with vignettes and
possible training if the new proposals were put forward.
The case for a finding in 4A procedure for a special verdict may be sufficient in
conjunction with a preserved Pritchard test to advance justice for the vulnerable without
opening up the floodgates to findings of unfitness to plead.
Regarding proposal 7 some felt a prescriptive test would be too narrow and
inappropriate to apply in all circumstances. Notwithstanding that, such a test may prove
impossible to scientifically validate, it may equally be prone to scientific advances in
understanding of mental capacity.
14 of 14