Crimes Mental Impairment consultation paper.pdf - Victorian Law ...

Victorian Law Reform Commission
Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper
Question
2 Does the current test for unfitness to stand trial, based on the Pritchard or
Presser criteria, continue to be a suitable basis for determining unfitness to
stand trial
Decision-making capacity
4.36 The Law Commission of England and Wales has proposed replacing the test based on the
Pritchard criteria 46 with a new legal test that assesses whether the accused person has the
decision-making capacity for trial. In its view, an accused person cannot participate meaningfully
in their trial unless they have the capacity to make decisions relating to the trial that the
current test fails to take into account. 47 The Law Commission of England and Wales anticipates
that if a person has decision-making capacity, then they would also satisfy the requirements
of the current test based on the Pritchard criteria because these criteria set a higher
threshold for unfitness to stand trial than a test that is based on decision-making capacity. 48
4.37 The test proposed by the Law Commission of England and Wales would bring the
unfitness to stand trial test in line with the civil mental capacity test in the Mental
Capacity Act 2005 (UK). The new test would require an accused person to:
• Understand the information relevant to the decisions that they will have to make in
the course of the trial—for example, an accused person with an acquired brain injury
who has very low cognitive ability and is unable to understand new or unfamiliar
information would be unfit to stand trial. 49
• Retain that information—for example, someone with Attention-Deficit Hyperactivity
Disorder (ADHD) who cannot focus and finds it almost impossible to remember any
new information given to them would be unfit to stand trial. 50
• Use or weigh that information as part of a decision-making process—for example,
an accused person who suffers from paranoid schizophrenia who has a factual
understanding of the charge, but indicates to the court that he wants to plead guilty
because he sees no point in pleading not guilty as everyone in court is part of a
conspiracy, would be unfit to stand trial. 51
• Communicate their decisions—for example, an accused person with autism who is
able to understand information and process it but does not acknowledge others, may
be unfit to stand trial. 52
4.38 The test proposed by the Law Commission of England and Wales therefore relies less on
basic competencies (such as the competence to assist counsel) that might equip a person
with the ability to communicate with counsel in a rudimentary fashion. The new test relies
more on sophisticated competencies (decision-making capacity) that equip an accused
person with the ability to understand and retain information and use that information to
process alternative courses of action and to express a choice among alternatives. 53 The
Law Commission of England and Wales is of the view that bringing the test in line with
the civil mental capacity test will remove the discrepancy between the two tests. It will
also avoid situations where a person can be found to have the capacity to stand trial but
not have the capacity to make more minor civil decisions. 54
60
46 Law Commission, above n 42, 62.
47 Ibid 39.
48 Ibid 62.
49 Ibid 55.
50 Ibid.
51 Ibid.
52 Ibid 54.
53 W Brookbanks and J Skipworth, ‘Fitness to Plead’ in Brookbanks and Simpson (eds) Psychiatry and the Law (LexisNexis New Zealand, Wellington,
2007) 157.
54 Law Commission, above n 42, 63–4.