Unfitness to Plead Consultation Responses - Law Commission ...

subjected to the new provisions must also be suffering from a mental disorder within its meaning in
the Act.
The fifth provisional proposal relates to assistance using special measures. In relation to mentally
disordered defendants, as opposed to the young, it is the provision of appropriate breaks and the
adaptation of vocabulary/questioning that I have found to be most relevant. I am not aware
however of any research that actually examines whether these changes make a real difference in
practice. It would be useful to undertake this, if only to understand better the simple issues of how
often or how long breaks in proceedings should occur. Psychological research finds that
meaningful concentration spans even in the fully mentally well are surprisingly short. I agree that
an additional special measure should relate to the giving of evidence as covered to an extent by
Section 35(1)(b) of the Criminal Justice and Public Order Act (1994). Medical evidence about the
general effect of a person’s mental disorder upon their ability to give evidence could be a useful
way of avoiding adverse inference. There may be other changes to evidence or procedure that
would be useful in making participation more effective. In the United States, when a person is
deemed to lack competence to stand trial ‘CST’, part of their subsequent hospital treatment ‘the
restoration of competence’ includes (as I understand it) some elements of training in what they
should expect, about the roles of various key players in the Crown Court and so on. I believe that
the use of mental health courts, where a team of familiar judges and other legal practitioners would
deal with such issues consistently would improve the use of these or any other measures that are
introduced.
In relation to the seventh provisional proposal, it is right that reform of the procedures should seek
to reduce inconsistency of assessment by psychiatrists. It is my belief that, in the presence of an
inadequate legal test, clinicians often make decisions about whether or not they believe a person
can fairly stand trial without referring to the law in advance. They then ‘hang their hat’ on an
element of the Pritchard test (if they mention it at all) in trying to justify that opinion (rather than the
other way around). Revising the test must go a long way towards remedying this, particularly if the
relevant areas of ‘decision making capacity’ are explicitly set out. There are problems that relate to
structured psychometric tests of constructs like fitness, risk, IQ, medical diagnosis etc. They can be
extremely time consuming. Clinicians can dismiss the findings of tools when a contradictory
outcome to their unaided clinical judgement appears. At an international conference of forensic
experts in recent years, the American attendees agreed that the many measures in existence there
were ‘almost never’ used in practice (even by those who had designed and researched them). The
MacCAT-FP, whilst limited, remains a good and broad test of competency based upon sound
research. It can provide valid and objective assistance in judgements about ‘Pritchard’ fitness.
Unfortunately it is not used: clinicians either do not see its value or are unaware of its existence. I
fear that new instrument(s) may not fare much better. Such instruments usually require training
and they can be invalidated if used by untrained assessors. There is the issue of copyright and
financial recompense: this can affect their take up and impact assessment. It has however been
demonstrated that some structured tests do not require expensive medical experts to administer
them, which is useful to bear in mind where resources are constrained.
I would like to comment upon the new proposed test. I accept the clearly argued reasons for its
proposal and the rejection of a disaggregated approach. My concern is that the new ‘criminal
capacity’ test as proposed, is difficult for those inexperienced in working with mentally ill offenders
to administer. Specifically, unless it is more explicit (i.e. about what the relevant information is e.g.
the consequences of pleading not guilty, deciding to make one response over another during cross
examination etc) assessors may revert to the uninformed value judgements that probably occur at
present. Unfortunately I think it is necessary to assume, in practice, that a significant number of the
experts that courts up and down the country instruct to provide opinions about capacity, actually still
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