Unfitness to Plead Consultation Responses - Law Commission ...

Respondent:
Dr Jillian Craigie
Centre of Medical Law & Ethics
School of Law
King’s College
London
Strand Campus
London
WC2R 2LS
NB:
In June 2011 I will be moving to the Department of Philosophy, University
College London, Gower Street,
London, WC1E 6BT.
Submitted: January 26, 2011
Comments in response to Law Commission’s Consultation Paper No 197
Unfitness to Plead
I have made some comments below in response to the consultation paper (CP).
However, the main purpose of this submission is to bring the Law Commission’s
attention to a relevant research project that is about to get underway. The
project is funded by a three year Wellcome Trust Biomedical Ethics Fellowship.
Its aim is to examine justifications for taking different features of mental
disorder into account in assessments of mental capacity and criminal
responsibility; or holding these features to different standards. Broadly, it's
about fairness in the way people with a mental disorder are treated in the
English legal system across these civil and criminal contexts. The project will be
based in the Department of Philosophy at University College London, and will be
advised by Jonathan Wolff (UCL, Philosophy), Genevra Richardson (KCL, Law),
Jill Peay (LSE, Law), Tony Hope (Oxford, Ethox), John Tasioulas (Oxford, Law)
and George Szmukler (KCL, Institute of Psychiatry). My own background is in
neuroscience and philosophy and their applications in medical ethics and law. I
would
be very interested in taking part in any further steps in the consultation
process, as a part of the Wellcome Trust project.
There were three points raised in the CP that will be of particular interest for my
project: sections 3.48 – 3.57 on “the need for decision‐making capacity to be
rational”; section 3.47 on whether “the criminal defendant is in a worse position
than the civil litigant”, and the relative potential for unfairness in the two
situations;
and section 2.69 on the “disproportionate emphasis on cognitive
ability”.
I will responds here to the first of these issues, concerning rationality and
capacity. I am in agreement with the essence of the proposal at 3.48. However, in
taking this position the CP has implicitly endorsed a particular understanding of
the term “rational”. In the interests of clarity and transparency it’s my view that
the
CP should make this assumption explicit, especially given the noted
ambiguity
of the term.