Unfitness to Plead Consultation Responses - Law Commission ...

1. Introduction
“UNFITNESS TO PLEAD”
BROADMOOR HOSPITAL RESPONSES TO A
CONSULTATION PAPER BY THE LAW COMMISSION
25 th January 2011
The following comments have been collated from numerous sources including:
Email correspondence and discussions with colleagues at Broadmoor Hospital
A seminar held at Broadmoor Hospital on 17 th January 2011
2. Limited usage of existing powers
Clinicians gave examples of using existing legislation in ways that might not be
widespread, in order to achieve better outcomes in specific cases. Use of remand
orders and transfer to hospital to treat patients who are unfit to plead has given
defendants the opportunity to become fit to plead – and thus defend themselves - after
treatment.
A senior Mental Health Act Office Manager drew attention to provision to make
remand orders (s.35, s.36 and s.38) under the DVCVA. She had only come across one
such remand order under this legislation in our hospital since it was introduced, and
suggested it should be used more often.
3. The role of psychiatrists
There is a potential danger of stretching the role of psychiatrists and mental health
professionals beyond their professional abilities and duties. Many of the points in the
consultation document refer to legal procedures and structures which psychiatrists
cannot comment on authoritatively. In a sense, psychiatrists were most comfortable
when asked psychiatric or medical questions.
4. Referral of defendants who are unfit to plead
Since not all cases require a psychiatric assessment of unfitness to plead, a possible
need for screening of defendants was raised. A method or procedure to assist lawyers
to identify defendants who are unfit to plead would help facilitate appropriate referrals
for specialist assessment. (Screening tools are used in numerous other fields to
improve liaison with psychiatric services.)
This might fit well alongside the principle of the “two-step test” in the Mental
Capacity Act 2005. If a defendant appears to be unfit to plead and lack capacity to
make relevant decisions, then a psychiatrist could be instructed to assess.