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

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Question
3 Should the test for unfitness to stand trial include a consideration of the
accused person’s decision-making capacity
4.39 The Law Commission of England and Wales anticipates that a new test based on
decision-making capacity would implicitly require that the Pritchard criteria be satisfied
as well. It is arguable, however, that an accused person could have decision-making
capacity without the basic competencies important for a trial. For example, a person
with paranoid delusions could have the ability to use and weigh information as part of a
decision-making process (the third criterion in the proposed test by the Law Commission
of England and Wales) but might not have the basic competency of instructing their
lawyer because of their delusions. 55
4.40 Instead of replacing the Presser criteria with a new test, it may be preferable to
supplement the current criteria with an additional requirement that an accused person
have the capacity to make decisions to be fit for trial. Alternatively, there could be a
two-stage approach. This would involve first an investigation into the basic competencies
of the accused person. If they have the basic competencies, the investigation of unfitness
then considers their decision-making capacity. 56
Question
4 If the test for unfitness to stand trial is changed to include a consideration of
the accused person’s decision-making capacity, what criteria, if any, should
supplement this test
4.41 The formulation put forward by the Law Commission of England and Wales may operate
too widely. It has the capacity to include accused people who have no recognised mental
illness but are unable to use or weigh information as part of a decision-making process,
for example, because of stress, overwhelming tiredness or poor education or social
background. 57 Howard recommends qualifying the test by requiring that the lack of
decision-making capacity must be ‘due to mental or physical illness, whether temporary or
permanent’. 58 This is similar to the Scottish Law Commission’s recommendation that what
makes the accused person unfit to stand trial must be a clinically recognised condition. 59
If a threshold definition of the mental condition the accused person would have to satisfy
is introduced (discussed at [4.28]–[4.31]), this would also limit the test.
Question
5 If the test for unfitness to stand trial is changed to include a consideration of
the accused person’s decision-making capacity, should the test also require
that the lack of any decision-making capacity be due to a mental (or physical)
condition
55 Bonnie, above n 3, 293–4.
56 Ibid 303. See also, R Mackay, ‘Unfitness to Plead – Some Observations of the Law Commission’s Consultation Paper’ (2011) 6 Criminal Law
Review 433.
57 Helen Howard, ‘Unfitness to Plead and the Vulnerable Defendant: An Examination of the Law Commission’s Proposals for a New Capacity
Test’ (2011) 75 Journal of Criminal Law 194, 201–2.
58 Ibid.
59 Scottish Law Commission, Discussion Paper on Insanity and Diminished Responsibility, Discussion Paper No 122 (2003) 49.
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