Who can assess Fitness to Plead?

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.