Unfitness to Plead Consultation Responses - Law Commission ...

Provisional Proposal 7: A defined psychiatric test to assess decisionmaking
capacity should be developed and this should accompany the legal
test as to decision-making capacity.
We agree with this proposal in principal however reserve our final comment upon
reviewing such a proposed test in its final form.
In summary we agree with the CP in proposing a defined, purpose – made (as opposed
to an adapted) psychiatric test. This is a stark example of the need for the law and
psychiatry to be able to work in a more compatible manner in the future. The absence of
such a test, has led to the Pritchard test being interpreted by medical practitioners in a
discretionary manner. This is wholly unsatisfactory for the accused and we agree with
the recommendations that a standardised test be provided for. Whilst we agree with the
proportionality in the legal test as set out in our response above, we do not agree with
the CP in stating that the inclusion of an assessment of facts looking into the gravity and
complexity of proceedings would in itself negate the need for proportionality to be
excluded in the legal test. Moreover, our position would be that these should treated as
two separate issues, one of law and the other of psychiatry, and together they are used
to determine a finding of unfitness to plead. Therefore this should arise from the relevant
professionals who can adduce the position from their area of expertise. Additionally we
agree with the provision in relation who is “duly approved” to carry out such a test, and
concur that it should be one psychiatrist and another medical practitioner.
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