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The Law Commission has proposed that psychologists should be included within wider tests to assess defendants’ mental fitness-to-plead when faced with criminal charges. 




In a move that has been welcomed by the British Psychological Society (BPS), the Law Commission is recommending that the opinion of a psychologist should be sought when advising judges on a defendant’s mental fitness. 

The commission, which oversees laws in England and Wales, said within its report that “consideration of the assistance required for defendants to participate effectively in the trial process is more squarely aligned within the expertise of psychologists than that of psychiatrists.”

In part, the decision to include those with psychology jobs has been influenced by the insufficient number of forensic psychiatrists to cope with an increased workload in light of the widening of the fitness-to-plead test. It’s a point also made by the Royal College of Psychiatrists within its response to the Law Commission’s public consultation on the proposed changes. 

It makes sense to involve psychologists within the test, since they are already routinely involved in assessing and treating what the Law Commission describes as ‘mood and cognitive disturbances’. They also already advise in capacity assessments, which the courts rely on. 

Currently two doctors, including a psychiatrist, advise judges on a defendant’s fitness prior to trial. The commission, however, wants psychologists to be involved within the test, where consideration needs to be given to show that the impairment or disturbance of brain or mind prevents them from being able to plead. They would also act as the second expert relied upon in court where cases progress to that stage. 

As the BPS point out, psychologists possess significant experience in specialist areas of mental health and can offer insights into the behaviour and ability of a defendant to contextualise a situation – so do those in mental health nursing jobs, social workers,  or an occupational therapist, albeit within the respective areas of expertise. 

In fact, the Law Commission’s report quite rightly points out that “the question remains whether that second expert could be from a broader range of disciplines than an RMP or a registered psychologist”. With limited enthusiasm for broadening the requirement further to encompass other professionals though, the ‘jury is still out’, but the commission recommends it could be an area that the Department for Health considers. 

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