Unfitness to Plead Consultation Responses - Law Commission ...

SECTION 2
KIDS COMPANY CASE STUDY
Please refer to the set of cases studies at Appendix I - IV
As our responses highlight, we commend the Law Commission in relation to their
proposal as set out in CP. However there are number of areas that in our practical
experience have not been addressed adequately and we therefore raise them at this
stage.
The CP makes brief reference at paragraph 2.62 to the role that of determination of
unfitness to plead has with respect to the role of the legal profession and unsatisfactory
screening procedures so that a client’s mental state is identified as soon as possible. It
correctly identifies the core issues, which are illustrated through Mr A case study at
Appendix I.
Mr A’s experience was that his solicitor was not able to determine or lacked the positive
onus to screen for Mr A’s mental capacity. The LSC requirement to obtain prior
authorisation to carry out such reports leaves the fate of the client in a somewhat of a
pot luck situation, in that whether a report is carried out is somewhat determined by the
quality and initiative of the legal representative. This does abide by the principle of
fairness.
Furthermore as set out in the case study of Mr Z; had a Kids Company representative
not been present to advocate on behalf of the client to produce a psychiatric report this
crucial piece of work would not have been afforded to Mr Z’s case.
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