Unfitness to Plead Consultation Responses - Law Commission ...

approach would be an improvement on the Pritchard test, and I do not have a better
proposal.
I am not persuaded of the appropriateness of the recommendation of the mandatory
use of a psychiatric ‘test’ to assess capacity. The paper that is cited in the consultation
paper (page 76) in support of the use of a ‘test’ (R Cairns et al, British Journal of
Psychiatry, 2005, 185, 379) looked at the rate of agreement between two assessors of
mental capacity when clinical assessment was augmented by the McArthur
Competence Assessment Tool for Treatment. Essentially what the paper shows is that
when this tool was used under these circumstances, independent assessors agreed.
However, they made a clinical judgement assisted by an instrument. This is not the
same as using a capacity ‘test’. In any case the ‘test’ that is being proposed for use is
still under development, and has not been published. It is highly unlikely that any such
instrument would be sufficiently psychometrically robust as to be reliable as a primary
assessment in the full range of circumstances where decision making capacity is an
issue. Even X-rays or blood tests in general medicine require significant interpretation;
psychometric instruments can only ever be adjunctive to clinical judgement in
psychiatry. I would strongly recommend against the mandatory use of an instrument of
this sort. Whilst the use of an instrument, or instruments that might be devised in the
future, might be desirable, making this mandatory creates a range of practical and
theoretical problems.
3. I have some concerns over the somewhat throw away reference on page 62 to people
with personality disorder lacking capacity with respect to criminal proceedings, and
other references elsewhere to adult attention deficit hyperactivity disorder and
Asperger’s syndrome. This point is not really expanded or justified, which leaves me a
little nervous. These are conditions where there is an indistinct demarcation between
disorder and normality. In some cases there is controversy within psychiatry as to the
validity of the clinical construct (i.e. whether these conditions actually amount to
syndromes or whether they are simply worrying behaviours). I would like to see further
exploration of this issue, as it is likely to be highly contentious amongst general adult
psychiatrists. This issue also has a bearing on the provisional proposal 9.1(6) as
regards to the admissibility of expert evidence on the general effect of a mental
disorder or impairment. These conditions are of highly variable manifestation and I
think that there are real problems with disconnecting expert evidence in such cases
from the specifics of the individual concerned.
4. The impact assessment seems to me to be of limited value. I cannot work out whether
it includes or excludes the impact of inclusion of magistrates courts’ defendants. If the
proposals are to have an impact upon the number of acutely unwell people in prison
(as appears to be an aspiration) and if a change in the law leads us towards a much
larger number of capacity hearings, such as currently occurs in the USA, then there
could be a major problem in finding sufficient psychiatrists to conduct these
assessments. However, I do think that it would be desirable to consider capacity in a
far larger number of defendants than is currently the case. Whilst I entirely understand
the desire to ensure that the proposals are fully congruent with human rights