Unfitness to Plead Consultation Responses - Law Commission ...

My comments refer to the recent Consultation Paper ‘Unfitness to Plead’.
I welcome that clarity is made in relation to a system ensuring a fair trail for
potentially vulnerable individuals. However, I would like to raise a point with which I
disagree:
1. Psychiatrists are the only professional group that is mentioned in relation to
carrying out capacity assessments.
Clinical Psychologists can and should be instructed to carry out such assessments.
Whist Psychiatrists may be involved the Mental Capacity Act (2005) specifically
mentions also Clinical Psychologists. I would like to argue that Clinical Psychologists
are even better placed than Psychiatrist to carry out such as assessments for a
variety of reasons:
1. Clinical Psychologists are routinely involved in assessing, formulating and
treating mood and cognitive disturbances. These factors should be
considered when assessing someone’s capacity more than their formal
diagnosis.
2. Whilst Psychiatrist are involved in diagnosis and administering medical
treatment, Clinical Psychologists are involved in formulating someone’s
difficulties, taking into account a variety of sources of information, such as
emotional, cognitive, cultural and psychosocial factors. These knowledge and
skills base makes Clinical Psychologists a more suitable professional group in
carrying out capacity assessments.
3. Clinical Psychologists are involved in carrying out comprehensive cognitive
assessments (whilst Psychiatrists are not). For instance the judicial system
routinely relies on Clinical Psychologists’ cognitive assessments to establish a
diagnosis of Learning Disability, or to understand the severity of someone’s
cognitive disturbance following a brain injury / degenerative condition. Test
scores need to be carefully interpreted as a low score does not necessarily
prevent someone from being capable of participating in the trail process. It is
therefore important that a professional with appropriate training of the most
widely used tests of cognitive functioning is asked to make sense of the
findings.
4. Furthermore, Clinical Psychologists have more experience than Psychiatrists
in supporting patients’ understanding of pros and cons when taking a
decision. All steps need to taken in this sense according to the Mental
Capacity Act (2005).
5. In summary, Clinical Psychologists are routinely involved in assessing
patients’ capacity and Clinical Psychologists have a very strong knowledge
and experience base to assess someone’s capacity.
On one hand, this Consultation Paper appears to want to modernise the system in
place, but on the other hand it does not seem to reflect that in practice a very large
number of fitness to plead assessments are indeed already carried out by Clinical
Psychologists. I believe that this new document should take the opportunity to clarify
this point, to legitimise the expertise Clinical Psychologists bring into the judicial
system, rather than Clinical Psychologists having to continue to be instructed under
Common Law.