Unfitness to Plead Consultation Responses - Law Commission ...

The group felt that many experts’ practice had developed to include consideration of effective
participation, but a structured framework around this to assure good practice was lacking.
The group strongly agreed with the Commission’s view that several domains of mental
functioning were important to a defendant’s overall fitness to participate effectively in their
legal proceedings (including impulse control and experience of reality distortion symptoms),
but this breadth of important impairments is not well-detected by applying the Pritchard
criteria.
One discussant (a consultant forensic psychiatrist) felt that normal practice was for the
emotionally aspect of participation to be left to the expert opinion of a psychologist (as
psychiatrists tended to limit themselves to the Pritchard criteria.
The group welcomed the proposal from LawCom that a legal professional – probably a judge
– set down all of the potential decisions a defendant might face in the course of proceedings.
The group hoped this might extend to all legal issues that needed to be addressed in expert
opinion as they agreed the current quality of instructions is often very poor. The group
welcomed this approach, but overall felt that the impact of such changes in terms of the
detail/length of reports and the number of reports needing to be commissioned had been
grossly underestimated.
One discussant was particularly concerned that the proposals did not reduce the availability of
‘interim disposals’ (ie detention in hospital after a finding of unfitness). These were felt to be a
useful option in the treatment and just management of a case. There was concern that a
more robust 4A hearing would lead to more cases being definitively resolved before effective
participation could be recovered.
The discussants were divided fairly equally in their view as to whether the new test ought to
follow a unitary concept or be a disaggregated test. They were agreed that a disaggregated
test would increase the impact of proposed changes in terms of the demand on expert
psychiatric opinion still further.
The group felt that greater clarity was required as to identifying which defendants should be
subject to any new test. The group felt that one of the major weaknesses of the current
system is the triage of defendants into those about whom expert opinion was needed. Whilst
the group acknowledged this was a problem not limited to this aspect of criminal medicolegal
practice and also that it might be felt this issue was the subject of other political initiatives,
nevertheless those present felt current arrangements were very weak and improvements to
the legal tests would have at best partial impact unless this other aspect significantly
improved so it might properly have received more attention in the Consultation.
This question of introducing a defined psychiatric test divided opinion in discussion. The
majority view was that such a test would be restrictive of professional practice without bringing
compensatory benefits. However, another argument advanced cogently by one of the more
senior clinicians present was that such a test would be benefical inter alia by making the
assessment more objective.