Unfitness to Plead Consultation Responses - Law Commission ...

Provisional Proposal 2: A new decision-making capacity test should not
require that any decision the accused makes must be rational or wise.
(Paragraph 3.57)
We agree with this proposal.
Having a comprehension of the theory of decisional capacity from a medical perspective
enables an understanding of why a decision may neither required to be rational or wise.
“Health care subjects can make unpopular decisions, even ones that are
considered highly irrational by others. A good example of such a decision is the
refusal of life-saving transfusion due to doctrinal religious reasons (Charland
2001, 137). 9 ”
The CP has correctly identified the balancing act: the relevant test needs to be robust
but also to allow for seemingly irrational or unwise decisions. As the CP sets out the
decision - making capacity test proposed allows for such self-determination but does not
allow for unlimited bad choices. The distinction whilst fine is important to be made in the
context of the types and nuance of decisions that face the accused in criminal
proceedings.
From our clients’ perspectives the ability to understand what is being asked of them in
relation to procedure and process is very much distinguishable from bad decisions that
can be made by anyone.
9
Charland, Louis, "Decision-Making Capacity", The Stanford Encyclopedia of Philosophy (Fall
2008 Edition), Edward N. Zalta (ed.), URL =
.
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