Unfitness to Plead Consultation Responses - Law Commission ...

3 Admission for treatment.
(1) A patient may be admitted to a hospital and detained there for the period allowed
by the following provisions of this Act in pursuance of an application (in this Act
referred to as “an application for admission for treatment”) made in accordance with
this section.
(2) An application for admission for treatment may be made in respect of a patient on
the grounds that—
(a) he is suffering from mental disorder of a nature or degree which makes it
appropriate for him to receive medical treatment in a hospital; and
(c)it is necessary ................for the protection of other persons that he should receive
such treatment and it cannot be provided unless he is detained under this section....”
Psychiatrists have systematic tools for assessing “dangerousness” – see paragraphs
12.15 -12.26 Principles of Mental Health Law and Policy Gostin, Bartlett et al 2010.
At the proposal (9) stage all that the Judge has to guide him on the question of
“dangerousness”, if “dangerousness” is to be the test, is an acquittal by the jury.
A psychiatrist who has been involved in the notional unfitness and 4A proceedings is
likely to have before him much better material and information upon which to make a
section 3 decision than is available to the Judge; and, for that matter, any of his
professional colleagues dealing with civil cases of “dangerousness” outside the
criminal justice system.
The ultimate decision about detaining the unfit, disordered, acquitted, dangerous
accused should be made or guided by a psychiatrist rather than a Judge.
That seems to be the pragmatic approach which has been adopted in Scotland ( CP
paragraph 6.125 quote ).
That same pragmatic solution could be arrived at in at least 2 ways :
(1) By appointing a psychiatric Assessor at the 4A stage – see by analogy CPR
Rule 35.15. At the end of the proceedings the Judge could turn to the
Assessor and say, “Do you want to commit the accused under sec 3?”;
alternatively
(2) By making the exercise of the judicial power at the 4A stage to detain under
sec 37 MHA 1983 (CP 7.8) conditional upon the expression of opinion by
one or more medical practitioners that a section 3 committal would be
appropriate.
At the proposal (9) stage it is hard to argue that Judges are possessed of expertise
superior to the entire psychiatric profession.