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Chapter 19 - Fitness to Plead Procedures in Relation to Mental Health and Capacity Legislation

from Section 3 - Criminal Justice Pathways and Legal Issues

Published online by Cambridge University Press:  18 May 2023

By
Harinder Bains  and
Jane M. McCarthy
Edited by
Jane M. McCarthy ,
Regi T. Alexander  and
Eddie Chaplin
Jane M. McCarthy
Affiliation:
Sussex Partnership NHS Foundation Trust and University of Auckland
Regi T. Alexander
Affiliation:
Hertfordshire Partnership University NHS Foundation Trust and University of Hertfordshire
Eddie Chaplin
Affiliation:
Institute of Health and Social Care, London South Bank University
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Summary

People with intellectual disability may be subject to unfitness to plead proceedings in court due to the nature of their disability. In addition, people withintellectual disability in England and Wales are also subject to legislation such as the Mental Capacity Act 2005 and the Mental Health Act 1983 (as amended in 2007). This chapter explores issues with current fitness to practise proceedings for people with intellectual disability in relation to the Mental Capacity Act and the Mental Health Act, including the use of Sections 35 and 36.

Keywords

fitness to pleadMental Health Actintellectual disabilityMental Capacity Act EnglandWalesrestriction orderssupervision orders
Type
Chapter
Information
Forensic Aspects of Neurodevelopmental Disorders
A Clinician's Guide
 , pp. 234 - 239
Publisher: Cambridge University Press
Print publication year: 2023

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References

R v. Pritchard (1836) 7 C&P 303.Google Scholar
Mental Capacity Act 2005. Available at: www.legislation.gov.uk/ukpga/2005/9/contentsGoogle Scholar
Mental Health Act 1983 (as amended 2007). Available at: www.legislation.gov.uk/ukpga/1983/20/contents.Google Scholar
Law Commission of England and Wales. Unfitness to Plead – Volume 1: Report (Law Com. No 364). The Stationery Office, 2016.Google Scholar
R v.Moyle [2008] EWCA Crim 3059.Google Scholar
Vassall-Adams, G, Scott-Moncrieff, L. Capacity and fitness to plead: the yawning gap. Counsel 2006; 3: 2–3.Google Scholar
R v.Ghulam [2009] EWCA Crim 2285.Google Scholar
Criminal Procedure (Insanity) Act 1964. Available at: https://www.legislation.gov.uk/ukpga/1964/84Google Scholar
Mackay, R, Kearns, G. An upturn in unfitness to plead? Disability in relation to the trial under the 1991 Act. Criminal Law Review 2000; July: 532–46.Google Scholar
Gov.UK. Criminal procedure rules and practice: directions 2020. Available at: www.gov.uk/guidance/rules-and-practice-directions-2020.Google Scholar
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Equality Act 2010. Available at: www.legislation.gov.uk/ukpga/2010/15.Google Scholar
United Nations. Convention on the Rights of Persons with Disabilities (CRPD). Available at: www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html.Google Scholar
Criminal Practice Directions [2015] EWCA Crim 1567.Google Scholar
Department of Health. Improving health, supporting justice. 2009. Available at: www.choiceforum.org/docs/justicebd.pdf.Google Scholar
NHS England. About liaison and diversion. 2020. Available at: www.england.nhs.uk/commissioning/health-just/liaison-and-diversion/about/ -accessed 11th December 2022Google Scholar
Ministry of Justice. Transforming rehabilitation: a strategy for reform. 2013. Available at: https://consult.justice.gov.uk/digital-communications/transformingrehabilitation/results/transforming-rehabilitation-response.pdf.Google Scholar

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