Unfitness to Plead Consultation Responses - Law Commission ...

Provisional Proposal – 6: Where a defendant who is subject to a trial
has a mental disorder or other impairment and wishes to give
evidence then expert evidence on the general effect of that mental
disorder or impairment should be admissible.
The College would support such a change and perhaps go further in suggesting
and say that where a defendant who has a mental disorder, intends to defend
themselves in court, then expert evidence should be admitted on the general
affect that their mental disorder would have on their ability to defend
themselves.
Provisional Proposal – 7: A defined psychiatric test to assess
decision-making capacity should be developed and this should
accompany the legal test as to decision-making capacity.
There appear to be several cogent arguments against having a defined
psychiatric test as per Part 5 of the CP, several of which the Law Commission
sets out themselves. Furthermore, a defined test would appear to be made
unnecessary by other proposals.
A specific psychiatric test for capacity does not exist in civil law/the Mental
Capacity Act 2005. We would argue that rather than leaving psychiatrists
unequipped, this allows them the freedom to tailor their professionalism to
each individual unique case. Mental disorders are diverse, individuals even
more so and the psychiatric testing underpinning the legal capacity test will
differ by condition and case. Introducing any defined psychiatric test along the
lines suggested would appear to run the risk of creating a burden of rigid and
perhaps unnecessary testing. In addition, evidence supporting the notion that
a psychiatric test is likely to be impractical lies in the Commission‟s own citing
of numerous such tests in the United States of America which have proven
inadequate.
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