Unfitness to Plead Consultation Responses - Law Commission ...

Response
The Society welcomes the opportunity to respond to this consultation. As well as
addressing the questions set out in the consultation paper, we think it pertinent to make
certain observations and comments separately upon certain issues raised in the
document.
It appears that the need for change is predicated upon the observation that the existing
Pritchard test is “outdated and inconsistent with modern psychiatry” (footnote 3, p. 1). In
addressing the issue of fitness/unfitness to plead, we concur with the expectation that
this will be brought into line with the principles underlying the recent legislation of the
Mental Health Act and the Mental Capacity Act, particularly the latter. These Acts are
couched in the language of decision-making capacity. It is therefore thought appropriate
to use this language in estimating a defendant’s fitness to plead, conceptualizing the
function of pleading as a decision-making process. It would be our contention that,
though the term ‘decision-making’ does not appear in the Pritchard legal test, it is
implicit. This may be a reflection on the change in language over time since Pritchard
was originally promulgated in 1836. However, a nineteenth century judge captured the
task demand of an accused person very well, that within due process he or she is
potentially an active party in the trial. Thus, the accused person needs to be able to:
• comprehend the evidence;
• give proper instructions to legal representatives;
• know that he/she can challenge a juror;
• comprehend the course of proceedings on the trial in order to give a proper
defence.
It can be seen from the above list that the criteria apply to the decision-making needed
throughout the trial and not just at the submission of plea stage. Unfortunately, however,
the title ‘Unfitness to Plead’ might suggest to some people that it only applies to that
single stage. In the USA, the issue is called “competence to stand trial”, and perhaps by
describing it so in UK law rather than “(un)fitness to plead”, there would not be the
present confusion. We are not aware that any such change in wording has been
proposed: originally called the Incapacity Bill, it finally became the Capacity Act.
One of the criticisms raised in the document is that Pritchard “places a disproportionate
emphasis on cognitive ability, and does not take any or sufficient account of factors such
as emotion or volition” (Section 3.23). From the perspective of academic and practising
psychologists, this does not represent modern psychological thinking. Decision-making
could be said to be the cognitive function par excellence, and occupies much of the
attention of cognitive psychologists and scientists. People who are not psychologists
often restrict the term ‘cognitive’ purely to intelligence and intelligence quotient (IQ)
testing. This is an unfortunate error as people can have the same IQ and be quite
different in their decision-making capacity, a fact which mitigates against the placing of
too much emphasis on IQ scores.
It is of note that when possible capacities to be included in evaluating fitness to plead
are itemised (in Section 3.13), four processes are cited that psychologists would
consider to be cognitive, 1) understanding of information (comprehension), 2) recall of
information (memory), and weighing up information (reasoning). The last, 4)
‘communicating decisions’ leaves out the process of deciding what to communicate,
which will be based upon the process of ‘problem-solving’, which can also be said to be
cognitive.
Unfitness to Plead
British Psychological Society response, January 2011
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