Unfitness to Plead Consultation Responses - Law Commission ...

From: Karina Hepworth
Sent: 04 January 2011 12:03
To: LAWCOM Criminal Law
Subject: unfitness to plead consultation
Dear Colleagues, I am responding to the consultation regarding unfitness to plead in
the capacity of my role as a learning disabilities nurse employed by a mental health
NHS trust but working within Kirklees youth offending teams for a period of eight
years. I am going to go through a specific case I dealt with a few months ago which I
hope will give light in practice as to a positive way forward.
A young woman was referred to me following a court appearance for criminal
damage and was an extension to a referral order made elsewhere in the country. This
young woman (I’ll call her Mary) resided in a residential home run by the voluntary
sector for people with learning disabilities and challenging behaviour, she is
seventeen years old. Mary had lived at several addresses away from her local area and
had been moved around due to issues with her family and behavioural concerns. On
seeing her I knew that she had very significant issues with ability and was concerned
that she wouldn’t be able to undertake the delivery of the referral order. I had a
discussion with YOT staff, contacted her previous YOT and several health and social
care professionals who had known her previously for several years all who doubted
Mary’s ability to engage in the process and felt that she had fluctuating capacity. In
looking at the code of practice around mental capacity, speaking to regional workers
in health and legal services for advice I discussed with the YOT that we should take
this order back to court and that I would write a report for Court outlining the issues
and why this was necessary plus the supporting evidence in relation to the Bradley
report etc. It was also significant that Mary had been assessed as being fit to plead at
a one off assessment as requested by the solicitor and therein were my concerns
around being assessed as fit to plead but lacking capacity and found this to be a real
contradiction and had resulted in Mary going through a process she had little
understanding of. In speaking to regional officers around risk, offending, mental
health I found little help and they were at a loss as to how to offer any support. The
guidance was to try to go through with returning the order to Court. The Order did
return to Court and I supported Mary to attend (there was also the difficulty of the
previous order in another Court)and Mary was given an absolute discharge, she is
doing well in a new environment nearer her family.
I would be interested to know if there had been any thoughts about an Order being
given and then needing to be revoked as in Mary’s case.I do think that there needs to
be a new test which takes capacity into account,fitness to plead seems to be a separate
entity but how can the two be separated? and reports should be open for a range of
professionals to complete.I don’t see that it should be the Judge who should ascertain
the complexity of the case.
I hope this information is sufficient and would be happy to expand on some of the
issues if needed
Regards, Karina Hepworth