The Law Commission has launched a consultation proposing an overhaul of the rules governing who is considered mentally fit to stand trial.

The commission suggests scrapping the current ‘fitness to plead’ rules which have been in place since 1836, and replacing them with a procedure that takes account of modern psychiatric thinking.

The new test would focus on whether the accused has the capacity to make decisions about their defence. A defendant would be found to lack this capacity if they could not understand and then weigh up relevant information from the trial.

However, the consultation proposes that any decisions the accused makes will not have to be either ‘rational’ or ‘wise’. The emphasis will be on the decision-making procedure rather than the decision itself.

The consultation paper aims to ensure that those who could stand trial with special assistance do so, as well as maintaining public protection from dangerous offenders and bringing greater fairness through a more effective process.

The consultation closes on 27 January.