Unfitness to Plead Consultation Responses - Law Commission ...

obtaining a suitable bed and we doubt that there is likely to be a
significant increase in resources to meet the present, let alone any
increased demand. At present, it is impossible to assess this aspect. One
could argue that there should not be any significant increase. Any person
who is found to be unfit to plead under the existing test is likely to be
found unfit under the proposed capacity test. So, there would be no
increase there. Any person who would now be found unfit to plead but
would not have been so found under the existing test, would have been
likely to have been made subject to an order under Section 37 or 37/41
Mental Health Act 1983 following a trial.
7. We do not think that this necessarily conforms to the reality in all cases.
Some judges feel so frustrated by their unsuccessful efforts to find a
hospital bed that they take the view that if they impose a prison sentence,
then if appropriate, the defendant will be transferred under the provisions
of Section 47/49 Mental Health Act 1983 and that route to hospital is
likely to be faster than remanding a defendant in custody whilst a bed is
found. This does, of course, ignore the power which is available but not
widely used, to obtain information under Section 39 Mental Health Act
1983. We consider that on any view of the matter, there needs to be
careful consideration of the availability of resources necessary on
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