Unfitness to Plead Consultation Responses - Law Commission ...

LAW COMMISSION CONSULTATION: UNFITNESS TO PLEAD
Law Commission
Unfitness to plead: A Consultation paper.
Autism and Asperger syndrome.
Thank you for asking for my views as part of the consultation. I will be brief and confine my
comments to those aspects that I feel are most important for this group of individuals. Please do not
hesitate to contact me should you require clarification or further assistance.
Declaration of interest.
I am the Director of Research for the National Autistic Society and Research Director for Research
Autism, an associated charity. I am also the consultant adviser on autism to the States of Jersey and
to the Inspire Foundation of Malta. I am a member of the Guideline Development Group for the
National Institute for Clinical Excellence (NICE).
1. General
a. The fact that a subject has an autistic spectrum condition does not in itself affect
either mens rea or fitness to plead. This should be determined on an individual basis
for reasons stated in 2 below.
b. It is important that individuals with autism are seen to have capacity unless
determined otherwise.
c. It should be recognised that although in general the awareness of autism has
increased many in the psychiatric profession will still have only limited clinical
experience of the condition.
d. Research has shown that individuals with autistic disorder are vulnerable to
misdiagnosis with other psychiatric conditions.
e. It is important to differentiate between the core features of autistic disorder –i.e.
the presence of unusual social development such as rigid repetitive behaviours,
alongside an absence of usual social and cognitive development such as problems
with intuitive social behaviour and communication that is present from birth-from
other symptoms that arise through co morbid psychiatric disorder. It is also
important to acknowledge that the core features of autism are life long and tend
not to be amenable to intervention.
f. Such individuals tend not to fulfil requirements of unfitness to plead by reason of
insanity. Hospital admission may also be problematic because the disorder is life
long and stable and no ‘appropriate medical treatment is available’ for the core
condition – although secondary or co morbid psychiatric disorder may well be
treatable.
2. Unitary v disaggregated construct of decision making.
a. A unitary construct seems less useful for the following reasons
i. Individuals with autistic disorders are a highly heterogeneous group and
vary enormously in terms of IQ, communication level, cognitive profile and
degree of co morbid psychiatric disorder, the latter thought to be present
in around 70% of such individuals, particularly anxiety and depression.
ii. The profile of skills and deficits makes for particular problems in
understanding the condition and responding appropriately. Such individuals
may be highly competent in many areas of their lives but impaired in
others, typically those where abstract thought or judgement of context is
required. It is this juxtaposition of high IQ and ‘socially blind’ behaviour
that is at the heart of the disorder.
iii. It is also likely –even probable that an individual could be capable of
understanding the nature, concept and consequences of any act –indeed,
may be very remorseful and upset when they realise they have done wrong-
CONSULTATION RESPONSE
RICHARD MILLS, THE NATIONAL AUTISTIC SOCIETY; FEB 2011