Unfitness to Plead Consultation Responses - Law Commission ...

Law
Commission
Steel
House
11
Tothill Street
LONDON
SW18
9LJ
Dear
Re: Unfitness to Plead Consultation Paper
Professor Ormerod sent me a copy of this consultation paper, as I was a participant in 14 th
December 2009 meeting at the Law Commission offices. I attended as a general adult
psychiatrist with an interest in mentally disordered offenders, and as someone who has
been closely involved in mental health criminal justice liaison teams. My comments about
the paper are strongly informed by this perspective.
The first thing to say is that the paper is well written, so that I managed to understand a
number of complex legal issues that are beyond my expertise. I also felt that it was, in
general, persuasive with regard to its main proposals. Clearly, a good deal of the content
concerns legal procedure, and it is difficult for a clinician to work out what the practical
consequences might be, especially with regard to individuals appearing in magistrates
courts (which is the bulk of my work with mentally disordered offenders).
There are a number of issues that cause me some concern.
Adran Academaidd Iechyd Meddwl Wrecsam, Bwrdd
Iechyd Prifysgol, Uned Academaidd Wrecsam,
Wrecsam. LL13 7YP
Wrexham Academic Department of Mental Health, Betsi
Cadwaladr University Health Board, Wrexham Academic
Unit, Wrexham. LL13 7YP
Ein cyf / Our ref:
Ein cyf / Our ref: RGP/AMH
Eich cyf / Your ref:
:
Gofynnwch am / Ask for: Rob Poole
Ffacs / Fax:
E-bost / Email:
Dyddiad / Date: 18 th January 2011
1. The consultation paper does not have clear proposals with regard to summary justice.
However, the largest number of mentally disordered offenders pass through this part of
the criminal justice system. Whilst one can understand an emphasis in the consultation
paper on the most serious offences, nonetheless there are many problems at
magistrates courts. I am disappointed at the lack of firm proposals here. I do feel that
the same principles should apply in Crown and magistrates courts.
2. I am persuaded by the unitary approach augmented by the provision of special
measures, but I have some concerns over the use of mental capacity as set out in the
Mental Capacity Act. The problem is that, in practice, the definition is sometimes
difficult to use. The elements of mental capacity in the Act do not necessarily
correspond to the psychological processes involved in decision making, and the
judgement as to whether people are able to, for example, weigh up information can be
very difficult to make with objectivity. However, I do believe that a capacity based
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