Psychiatric Fitness to plead assessment

Fitness to Plead in the Crown Court (Archbold 4-166a to 4-185)

The purpose of this procedure is to strike a fair balance between the need to protect a defendant, who has, in fact, done nothing wrong but is unfit to plead at his trial, and the need to protect the public from a defendant who has committed an injurious act which would constitute a crime if done with the requisite mens rea (R v Antoine [2001] 1 AC 340).

The procedure is set out in the Criminal Procedure (Insanity) Act 1964 as substantially amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and by sections 22, 24, 25, Schedule 2 and the provisions in respect of unfitness to plead and insanity in Schedules 10 and 11 to the Domestic Violence, Crime and Victims Act 2004 for all defendants arraigned after 31 March 2005. Transitional provisions are set out at paragraph 8 of Schedule 12 to the 2004 Act.

The procedure has two stages:

1. Whether the offender is under a disability i.e. whether he is “unfit” to plead (section 4 Criminal Procedure (Insanity) Act 1964) ; and if so

2. Whether he did the act or made the omission charged against him (section 4A Criminal Procedure (Insanity) Act 1964).

This is taken from a Consultation by the Law Commission (Consultation Paper 197). They are to publish a report in the summer of 2012 and are hopefully going to introduce a standard psychiatric assessment as the Pritchard Criteria is quite a controversial test.

The law on unfitness to plead is concerned with whether or not an accused is able to stand trial and, if not, the procedure that should be used to deal with that accused. Where the issue of unfitness to plead arises, the court does not consider the accused’s guilt, but rather two distinct issues. First, there is the question of whether the accused is “under a disability” which renders it inappropriate for him or her to be tried. This can be due to a disability caused by a physical impairment or a mental disorder. An example would be an accused who as a result of very low intellectual ability is unable to follow the process of his or her trial. Secondly, if the court finds that the accused is under such a disability, the jury must determine whether or not the accused did the act or made the omission charged There is no statutory provision for the legal test of whether or not an accused person is unfit to plead. The test itself, known as the Pritchard test, is covered by the common law.

In short, the Pritchard test requires that the accused must be able to: plead to the indictment; understand the course of the proceedings; instruct a lawyer; challenge a juror; and understand the evidence. If the accused is unable to do any one of these five things then he or she is unfit to plead. Along with the recommendations above, it also recommended that the criteria which comprise the legal test should be reformulated to include the ability to:

(a) understand the course of the proceedings at the trial so as to make a proper defence;

(b) understand the substance of the evidence;

(c) give adequate instructions to his legal advisers; and

(d) plead with understanding to the indictment.

Under the current law on unfitness to plead, section 4(6) of the 1964 Act provides that a court cannot make a determination as to the accused’s unfitness to plead “except on the oral or written evidence of two or more registered medical practitioners at least one of whom is duly approved”

“Registered medical practitioner” is defined in the 1964 Act as a “fully registered person within the meaning of the Medical Act 1983 who holds a licence to practice”. “Duly approved” means “approved for the purposes of section 12 of the Mental Health Act 1983 by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder”.

Although the 1964 Act does not therefore specifically require that the evidence comes from a psychiatrist, in practice a finding of unfitness to plead has required a consensus of psychiatric opinion. However, a significant change under the Mental Health Act 2007 was to allow many of the roles under the Mental Health Act 1983 to be performed by a wider range of professionals by replacing the role of the “responsible medical officer” with that of the “responsible clinician”. Responsible medical officers were in practice usually consultant psychiatrists whereas the responsible clinician, who has overall responsibility for a patient’s case, can be any practitioner who has been approved for that purpose. Approval is not intended to be restricted to medical practitioners – it can extend to practitioners from other professions, such as psychology, occupational therapy and social work.

The Mental Health Act 1983 therefore now recognises a broader range of mental health professionals as having the necessary expertise to take clinical responsibility for a particular patient.

Despite this broader approach to professional roles under the Mental Health Act 1983, and the provision under the Mental Capacity Act 2005 for a wide range of people to make capacity assessments, ……that there should remain the requirement in criminal proceedings that an accused cannot be found to lack decision-making capacity except on the oral or written evidence of two registered medical practitioners, at least one of whom is duly approved under section 12 of the Mental Health Act 1983. In practice we therefore envisage that a determination as to decision-making capacity will continue to require evidence from at least one psychiatrist, particularly if, as we propose, there is a standardised psychiatric test to assess decision-making capacity.

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