title: Mental health and fitness to plead proposals in England and Wales.
abstract: 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.
authors.affiliation: South London and Maudsley NHS Foundation Trust, HM Prison Belmarsh, Western Way, Thamesmead, London SE28 0EB, United Kingdom. Electronic address: m.faisal@nhs.net.
authors.forename: Faisal
authors.initials: F
authors.lastname: Mudathikundan
authors.affiliation: Barnet, Enfield and Haringey NHS Foundation Trust, North London Forensic Service, Chase Farm Hospital, The Ridgeway, Enfield, Middlesex EN2 8JL, United Kingdom. Electronic address: oriana.chao@nhs.net.
authors.forename: Oriana
authors.initials: O
authors.lastname: Chao
authors.affiliation: South London and Maudsley NHS Foundation Trust, Maudsley Hospital, Denmark Hill, London, SE5 8AZ, United Kingdom; Department of Forensic and Neurodevelopmental Science, Institute of Psychiatry, King's College London, De Crespigny Park, London SE5 8AF, United Kingdom. Electronic address: andrew.forrester1@nhs.net.
authors.forename: Andrew
authors.initials: A
authors.lastname: Forrester
mesh_terms: D032882:Comprehension; D003415:Crime / Q000331:legislation & jurisprudence / Q000523:psychology; D004739:England; D006801:Humans; D016743:Mental Competency / Q000331:legislation & jurisprudence* / Q000523:psychology; D008603:Mental Health / Q000331:legislation & jurisprudence*; D014852:Wales
keywords: Courts; Fitness to plead; Medico-legal; Offender mental health; Pritchard criteria; The Law Commission