Fitness to plead

It has always been recognized that the accused person has to have a basic understanding of the legal process in order to have a fair trial. Standard tests have grown up in order to determine 'fitness to plead'. The grounds for a patient being considered unfit to plead are inability to:

• understand the charge, or

• give instructions to a lawyer about his defence, or

• understand the difference between pleading guilty and not guilty, or

• follow the proceedings of the case in court.

Psychiatric reports are important in helping the court to determine the question of fitness to plead.

If the person is found unfit, a 'trial of facts' follows. If it is found that the person did commit the offence, the court can dispose of the case by making an order, such as for admission to hospital, as in section 37 of the Mental Health Act, with or without a restriction order. If the patient goes to hospital, receives treatment, improves, and becomes fit to plead, there is provision for him to be brought back to be tried by the court in the normal way.

The question of fitness to plead used to come up only rarely, and in the most serious cases, because persons found unfit to plead were sent to a Special Hospital without limit of time. However, in recent years, the court has had flexibility in how it 'disposes' of such cases, including community disposals and absolute discharge with no order. It seems, perhaps unsurprisingly, that the question of fitness to plead is now raised more frequently by the defence in a range of much less severe cases.

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