Unfitness to Plead Consultation Responses - Law Commission ...

4. We have been asked to suggest or put forward possible
special measures which could be used to assist a defendant
with impaired mental capacity to participate fully in criminal
proceedings. In this regard, the provisions of the Equality Act
2010 with regard to reasonable adjustments and the public
sector duty under the Disability Discrimination Act 1995
clearly impose duties to accommodate the needs of disabled
defendants and witnesses.
A particularly appropriate special measure would be
the assistance of a mental health advocate with
expertise in forensic work. For patients detained under
the MHA, conditionally discharged, subject to
guardianship or subject to community treatment orders,
there is now statutory provision of Independent Mental
Health Advocates (IMHAs) (section 130). The role of
the advocate is set out in the legislation and includes
giving help to the patient in order to understand the
provisions of the act by which he is detained. It extends
to assisting the patient to obtain information about, and
understand any rights that may be exercised under, the
Act.
It has become more common practice for IMHAs to
accompany a patient (at the patient’s request) to the
First Tier (Mental Health) Tribunal for a review of
detention. Mind’s experience is that the presence of an
advocate can empower and facilitate participation of
the patient in the hearing and increases the patient’s
understanding of the legal processes. Currently, there
is no provision in the Tribunal Procedure Rules 2008 to
provide guidance on the role of the IMHA at such
hearings. A recent consultation was conducted by
Judge Neville Chamberlain with a view to provision of a
guidance note on the role of the IMHA at hearings. It
appears, therefore, to be accepted that the IMHA can
have a valuable role in promoting participation and
understanding of the patient at his or her hearing.
Within a criminal trial there will clearly be different
considerations but Mind would propose the use of
independent advocates or intermediaries as a special
measure to facilitate participation of the defendant in
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