Unfitness to Plead Consultation Responses - Law Commission ...

Question 1: Do consultees agree that we should aim to construct a scheme which
allows courts to operate a continuum whereby those accused who do not have
decision-making capacity will be subject to the section 4A hearing and those
defendants with decision-making capacity should be subject to a trial with or
without special measures depending on the level of assistance which they need?
We agree that the test for unfitness to plead needs replacing to align it with modern
psychiatric thinking. The proposed decision-making capacity test appears a more appropriate
way of assessing whether a person is able to stand trial. Importantly, it is focused on an
individual’s abilities and is not determined solely by reference to that individual’s mental
health diagnosis. We also welcome the inclusion of special measures in the test. It is
important that those who are able to stand trial with assistance are allowed to do so, and
we would encourage greater consideration and use by the courts of special measures for
people with mental health problems. We would stress, however, that these measures must
ensure effective participation on the part of the accused and should be reviewed where
necessary for example, if the person’s mental health deteriorates during the course of a
trial. We would also welcome greater discussion of the role that sections 35 and 36 of the
Mental Health Act 1983 should play alongside the law on unfitness to plead. For example,
section 36 allows people to be remanded to hospital for treatment which could be
appropriate in many cases where treatment will improve a person’s mental health problems
so that the trial can take place within a reasonable period of time.
Provisional Proposal 4: In determining the defendant’s decision-making capacity,
it would be incumbent on the judge to take account of the complexity of the
particular proceedings and gravity of the outcome. In particular the judge should
take account of how important any disability is likely to be in the context of the
decision the accused must make in the context of the trial which the accused
faces.
We agree with the Law Commission’s reasoning as to why it would be difficult to include socalled
‘proportionality’ considerations in a test for decision-making capacity in the criminal
context. We would be particularly concerned that the ‘gravity’ of the outcome would be
determined, for example, by reference to the possible length of a custodial sentence. This
could, for example, fail to take into account the detrimental effect that short sentences can
have on a person with mental health problems. For offenders with mental health problems,
short sentences do little to prevent re-offending, can be detrimental to an individual’s
mental health and are also costly to the tax payer. They can result in a person losing their
job, home, benefits and family. Short sentences can also disrupt any health care that
prisoners may be receiving in the community. At the same time, they do not provide enough
time for prisoners to have their needs assessed in prison or to get access to the services
that could help. We would therefore be concerned about a decision-making capacity test
which requires the judge to take into account the matters detailed in provisional proposal 4.
Provisional Proposal 7: A defined psychiatric test to assess decision-making
capacity should be developed and this should accompany the legal test as to
decision-making capacity.
Obtaining access to psychiatric assessment can be a significant hurdle at different stages in
criminal proceedings and could be one reason behind the low numbers of unfitness to plead
hearings. Also, there is some evidence that psychiatric reports can be inappropriate or unfit
for purpose. A defined psychiatric test could result in more relevant psychiatric reports and