Unfitness to Plead Consultation Responses - Law Commission ...

PP2: A new decision-making capacity test should not require that any decision the
accused makes must be rational or wise.
While PRT agrees with PP2, particular care must be taken to ensure that the
accused is properly supported in his or her decision-making. For example, the
accused must understand information given to him or her, understand the process
they will be subject to, and the consequences of any decisions made. Such support
should be provided by one or more appropriately qualified practitioners 1 .
The Royal College of Psychiatrists and The British Psychological Society 2 have
produced professional practice guidelines for assessing capacity and best interest
decision making, and further investigation with them would be useful.
PP3: The legal test should be a revised single test which assesses the decisionmaking
capacity of the accused by reference to the entire spectrum of trial decisions
he or she might be required to make. Under this test an accused would be found to
have or to lack decision-making capacity for the criminal proceedings.
PP4: In determining the defendant’s decision-making capacity, it would be incumbent
on the judge to take account of the complexity of the particular proceedings and
gravity of the outcome. In particular the judge should take account of how important
any disability is likely to be in the context of the decision the accused must make in
the context of the trial which the accused faces.
PP3 or PP4: PRT agrees with PP3 – that there should be a revised single test,
which assesses the decision-making capacity of the accused by reference to the
entire spectrum of trial decisions that he or she might be expected to make. Further,
unless the accused has the capacity to participate effectively in all aspects of
criminal proceedings – supported, as necessary, by special measures and
reasonable adjustments – he or she should be deemed unfit to plead.
PP5: Decision-making capacity should be assessed with a view to ascertaining
whether an accused could undergo a trial or plead guilty with the assistance of
special measures and where any other reasonable adjustments have been made.
PRT agrees in principle with PP5; however, the availability and scope of special
measures and reasonable adjustments must first be determined. Wherever possible
an individual should receive appropriate support in order to stand trial, and to
participate fully in proceedings. If the assistance of special measures and reasonable
adjustments are to have any influence on the assessment of whether an individual is
1 Such as a psychiatrist, psychologist, nurse, social worker and speech and language therapist.
2 http://www.bpsshop.org.uk/Best-Interests-Guidance-on-adults-who-lack-capacity-to-make-decisionsfor-themselves-England-and-Wales-P708.aspx
; http://www.bpsshop.org.uk/Assessment-of-Capacityin-Adults-Interim-Guidance-for-Psychologists-P712.aspx
Jenny Talbot, Prison Reform Trust Page 2 3/25/2013