Unfitness to Plead Consultation Responses - Law Commission ...

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Date: 27 th January 2010
The Law Commission
c/o
Steel House
11 Tothill Street
London
SW1H 9LJ
Dear
Re: Unfitness to Plead; A Consultation Paper.
Thank you for your letter dated 27 th October 2010. In reading your consultation paper it is plain that
your team have taken time to consider carefully the many relevant publications and pieces of
research, including my own. Having spent a significant amount of time considering the topic
myself I would, if I may, like to contribute to the consultation also.
I agree that unfitness to plead, disability in relation to trial and unfitness to stand trial are all
unsatisfactory terms that have the potential to both conflate and also not fully encompass the
relevant issues. I wonder, however, if a move to use the term ‘decision making capacity’ suffers
from some of the same shortcomings, because the ability to make decisions can still be said to be
one aspect of an issue that is somewhat broader. Whilst decision making does seem the most
important demonstration of ‘effective participation’, it might not for example, encompass the way in
which a person’s mental disorder could cause a jury to draw an unfair adverse inference about
them. Perhaps the term ‘capacity to participate’ [in criminal proceedings] could be considered more
comprehensive.
In relation to the second provisional proposal, I have always found difficulty with the emphasis in
law upon there being no requirement for an accused to make decisions that are rational or wise.
Watching patients make irrational or unwise decisions at Court has in my experience been one of
the most difficult aspects of providing expert evidence, as it must be for lawyers to provide
representation. In my view there should also be an emphasis, as with the issue of fitness, upon
‘why’ and not ‘whether’ decisions are irrational or unwise. As set out in my literature review,
previous research finds that a large proportion of individuals with no mental disorder nonetheless
show impairments in some aspects of ‘capacity to participate’ using instruments such as the FIT-R.
I feel that the overriding principle of any amended functional test should be that an individual
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