The Law Commission – new unfitness to plead proposals

The Law Commission has today published proposals to update the current test of a defendant’s fitness to plead, by broadening the range of tests that can be used and including opinion from Expert Psychologists.

The current test of Fitness to Plead assessment is generally conducted by Expert Witness Psychiatrists and includes elements such as the Pritchard test, which dates back to 1836.  The Law Commission’s report proposes an overhaul of the Fitness to Plead process to include an assessment of the defendant’s ability to participate effectively in their trial.  They argue that this would bring the tests more in line with current mental health practices and enable Expert Psychiatrists and Psychologists to give a broader opinion on the issues.

Our Expert Witness Psychiatrists are frequently instructed to provide Court reports relating to a defendant’s Fitness to Plead, however the instructions received from the solicitor often include additional questions such as their ability to participate in the proceedings.  So from our experience it seems as though many solicitors instructing Expert Psychiatric reports are already extending their instructions beyond the basic Fitness to Plead assessment, to seek an opinion as to whether the defendant would benefit from additional support such as an intermediary.

On the further point made in the Law Commission’s report about the lack of availability of the Unfitness to Plead procedure in the Magistrates and Youth Courts, it appears well overdue that this should be introduced and we are encouraged that concerns around Mental Health issues are being recognised so that vulnerable individuals can receive appropriate support whilst navigating complex legal processes.

Finally, the report recommends training for judges and other legal practitioners to enable them to more readily identify those who may require support.  Again this is an issue that we often come across, where a solicitor contacts us as they are unsure of the best way to proceed.  We are able to provide guidance as to whether an Expert Psychiatrist or Expert Psychologist would be most appropriate and also what types of questions could be addressed in the Expert Witness report for the Court.

For details on the Law Commission’s proposals for the updating of rules on unfitness to plead click here.