Unfitness to Plead Consultation Responses - Law Commission ...

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.
Reply
37. We would encourage any research which may assist in providing a fair
system for anyone who is or may be unfit to plead. We do, however,
consider that the decision must be one for the court rather than expert
witnesses no matter how eminent. The Consultation Paper makes it clear
how difficult it has been found to provide a suitable test. We do not feel
able to make any meaningful comment without details of the test. We do
acknowledge that at present there are many reports which do not properly
address the Pritchard criteria. Some psychiatrists do not address all of the
criteria; others import capacity. We think it would be useful if the
medical profession could seek to apply the factors in each case so that
when the court has two or more reports, it knows that the same
considerations have been applied. But this takes one back to determine
the ambit of the expression, “the whole spectrum of decisions” which an
accused is required to make.
38. We would add this in relation to the discussion whether the qualification
should be reserved to psychiatrists or should be extended to include
psychologists. There are many forensic psychologists who are able to
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