Unfitness to Plead Consultation Responses - Law Commission ...

- Allowing the deafblind person to choose their own interpreters.
- Allowing for substantial communication breaks.
- Having a person take verbatim notes so that the deafblind person can
request that the proceedings stop whilst he or she catches up by using the
verbatim notes.
- Proceedings may need to slow down to allow for all evidence to be
presented at a speed at which it can be digested and processed by the
deafblind person. For example if the deafblind person can only receive
information via a screen where the spoken word is translated into a written
word, then the proceedings may have to pause whilst the typist or palantypist
catches up with the verbatim transcription.
Provisional Proposal 7
Sense is very concerned that a standard psychiatric test will determine capacity
but will overlook a person’s ability to access a trial. A psychiatric test will not be
relevant to a deafblind person as their unfitness to plea does not relate to
psychiatric capacity but to their inability to communicate and access information.
Further, Sense is gravely concerned about the proposal that the people deemed
qualified to assess fitness to plea for deafblind people should be doctors and
more specifically psychiatrists. A psychiatrist is not the most appropriate person
to assess whether a deafblind person is fit to plea and whether he or she is able
to access the trial proceedings. The most appropriate person to assess a
deafblind person’s fitness to plead would be a deafblind expert.
A medical or psychiatric qualification would infer no expert knowledge of
deafblindness. Questions of fitness to plea which relate to deafblindness involve
complex assessments of communication and access to information needs rather
than psychiatric needs. Sense is concerned that by establishing an absolute
requirement for a psychiatric test and a psychiatric medical professional, the
provision will discriminate against deafblind people who may have full capacity
but because of communication or access to information barriers would be
prevented from effective participation in the trial.
Sense suggests that the proposal should be amended to allow for a separate
assessment of fitness to plea which relates not to the mental capacity of the
individual but instead to their ability to access and effectively participate in the
trial proceedings. It is appropriate for a capacity assessment relating to mental
health or mental impairment to be carried out by 2 doctors including a
psychiatrist. If the fitness to plea relates to a physical or sensory impairment such
as deafblindness, then the assessment should be carried out by 2 suitably
qualified persons. 9
9 See footnote 7 above.
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