Unfitness to Plead Consultation Responses - Law Commission ...

On the other hand, the so-called continuum with a unitary construct appears to be
quite limited, in that it might helpfully re-emphasise use of special measures and
effective participation, but still potentially fails to distinguish the separate questions of
fitness to plead, fitness to stand trial and fitness to give evidence.
The question of whether any of these three should be considered together or not was
not fully resolved, but the notion of separating fitness to plead and fitness to stand
trial has face validity for many psychiatrists, even if it makes less sense in the legal
framework.
7. Children and developmental immaturity
Colleagues working with children and adolescents stated their concern at the age of
criminal responsibility in England remaining at 10 years of age. Not only has this
continued within a firmly criminal (rather than social welfare) structure, but the
removal of the defence of doli incapax has rendered child defendants more
vulnerable.
Any developments in the field of unfitness to plead should, as far as possible, aim to
meet the needs of child defendants and facilitate the involvement of supportive
agencies such as social services. Evidence-based interventions at this stage will serve
not only the best interests of the child but also the public.
8. Effective participation
The group discussed the Law Commission’s proposal on effective participation and
issues on proportionality. While proportionality may not be specifically relevant for
patients in maximum security as those who are found unfit to plead or stand trial for
very serious offences are admitted to help regain fitness, the group nevertheless felt it
(proportionality depending upon the nature of the offences) is an important factor and
needed to be considered in the proposed changes.
9. Disposal
Whilst some clinicians were satisfied with the current disposal options for defendants
found unfit, there was some discomfort around the lack of assertive management of
supervision orders. Some psychiatrists expressed interest in having more assertive
community disposals, similar to powers described under Supervised Community
Treatment (i.e. Community Treatment Orders), for those defendants that do not
require hospital admission.
10. General Comments
Overall, our staff group showed a great deal of interest in this consultation and agreed
there was a case for some reforms of the law. The consultation document is a readable