Unfitness to Plead Consultation Responses - Law Commission ...

Executive Summary
- Sense is broadly supportive of the move from the Pritchard test towards
assessing a person’s capacity to make decisions.
- Sense is concerned that in making a move towards an assessment of a
person’s capacity to make decisions; the separate issue of whether a trial
can be made accessible should not be overlooked.
- Sense takes the view that in the event that a deafblind person has such
profound sensory and communication impairments that he or she is
unable to access the trial in an ordinary manner; and there are no
reasonable adjustments (special measures) which can be made which
would allow for that individual to be able to access the trial, then the
person should be held to be unfit to plea. This is a different issue to
whether a person has decision-making capacity. A deafblind person may
have the psychiatric or mental ability to follow the proceedings, but
because of her dual sensory impairment she may be unable to access the
trial.
- In the interests of equality and fairness a deafblind person should not be
able to hide behind his or her disability. Sense supports the view that
some deafblind people will be able to access the court process effectively
and should be supported to do so where appropriate.
- Sense supports the Government’s view that special measures will need to
be put in place to allow for some deafblind people to access court
proceedings. A suitably qualified person should be appointed to assess
what, if any, special measures need to be put in place. Special measures
must be tailored to the needs of the individual.
- Sense is gravely concerned that the introduction of a standard psychiatric
test of the capacity to make decisions would discriminate against deafblind
people who may be psychiatrically stable enough to qualify as having
decision making capacity but whose dual sensory impairment coupled with
an inability to communicate and receive information may prevent them
from being fit to plea or stand trial.
- In the case of deafblind people, psychiatrists may not be suitably qualified
people with the relevant skills to make an assessment of capacity because
in relation to deafblind people, fitness to plea or to stand trial relates to
their inability to communicate and or access information rather than their
mental state or mental capacity.
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