Mental health and fitness to plead proposals in England and Wales

TY - JOUR

T1 - Mental health and fitness to plead proposals in England and Wales

AU - Mudathikundan, Faisal

AU - Chao, Oriana

AU - Forrester, Andrew

PY - 2014/3

Y1 - 2014/3

N2 - Proposals to reform fitness to plead legislation have been published by the Law Commission in England and Wales; they include a new test of decision making capacity and a new psychiatric test that has yet to be fully developed. Although proposals have met with some support, there have also been detractors. The history of fitness to plead is reviewed and current case law (including the 1836 Pritchard criteria) is examined. Although existing arrangements have been criticised, this may be attributable to inconsistent practical application, rather than inherent conceptual flaws. The Pritchard test has largely stood the test of time and has emerged relatively unscathed. Fitness to plead is not a medical construct, but rather a legal entity and any new test would be likely to introduce its own difficulties. A capacity based assessment could enhance debate and disagreement and increase court time in many cases, presenting new resource implications with questionable benefit. As the existing Pritchard criteria, amended by case law, already include a five limb test that closely resembles a capacity assessment (ability to plead to the indictment, to understand the course of the proceedings, to instruct a lawyer, to challenge a juror and to understand the evidence) and given the difficulties in introducing a functional test format in other jurisdictions, the Law Commission's proposals should now be set aside, perhaps for another day: reconsideration may be possible some decades hence, pending enhanced scientific developments within psychiatry and better understanding of the mind.

AB - Proposals to reform fitness to plead legislation have been published by the Law Commission in England and Wales; they include a new test of decision making capacity and a new psychiatric test that has yet to be fully developed. Although proposals have met with some support, there have also been detractors. The history of fitness to plead is reviewed and current case law (including the 1836 Pritchard criteria) is examined. Although existing arrangements have been criticised, this may be attributable to inconsistent practical application, rather than inherent conceptual flaws. The Pritchard test has largely stood the test of time and has emerged relatively unscathed. Fitness to plead is not a medical construct, but rather a legal entity and any new test would be likely to introduce its own difficulties. A capacity based assessment could enhance debate and disagreement and increase court time in many cases, presenting new resource implications with questionable benefit. As the existing Pritchard criteria, amended by case law, already include a five limb test that closely resembles a capacity assessment (ability to plead to the indictment, to understand the course of the proceedings, to instruct a lawyer, to challenge a juror and to understand the evidence) and given the difficulties in introducing a functional test format in other jurisdictions, the Law Commission's proposals should now be set aside, perhaps for another day: reconsideration may be possible some decades hence, pending enhanced scientific developments within psychiatry and better understanding of the mind.

KW - Fitness to plead

KW - Pritchard criteria

KW - The Law Commission

KW - Offender mental health

KW - Medico-legal

KW - Courts

KW - FORENSIC PSYCHIATRIC EVALUATION

KW - AAPL PRACTICE GUIDELINE

KW - STAND TRIAL

KW - COMPETENCE

KW - PERSPECTIVE

U2 - 10.1016/j.ijlp.2013.11.008

DO - 10.1016/j.ijlp.2013.11.008

M3 - Article

SN - 0160-2527

VL - 37

SP - 135

EP - 141

JO - International Journal of Law and Psychiatry

JF - International Journal of Law and Psychiatry

IS - 2

ER -