DISSENTING OPINTON.
NIX, Chief Justice,dissenting.
I cannot agree with the majority’s resolution of Mr. Breakiron’s complaint that he was denied the opportunity to have a determination as to his incompetency which would, of course, include his competency to stand trial and assist in his defense as well as the availability of an insanity defense. This complaint is not frivolous since appellant had been hospitalized for psychiatric treatment in 1984, had psychiatric problems in his youth, and has been treated for alcohol and drug problems in Alcoholics Anonymous and Narcotics Anonymous. It further appears appellant had once bound and held his mother and sister captive at knife point.
At the time of the killing of Miss Saundra Marie Martin, appellant sustained a cut on his forehead; he claimed he had been struck on the head whereupon he blacked out. The record further indicates appellant’s recollection of the circumstances surrounding the incident was hazy and at times incoherent.
*303Prudent counsel, under these facts, was compelled to have his client psychiatrically evaluated. Requests for such an evaluation were made under the Mental Health Procedures Act, 50 P.S. § 7101, et seq., and two orders were entered by two different judges,1 neither of whom were the trial judge. The record contains no report from examining psychiatrists as a result of those orders.
In resolving the issue this Court, as well as counsel, analyzes the matter from the perspective of the Pennsylvania Rules of Criminal Procedure relating to discovery. Pa. R.Crim.P. 305. However, what is pertinent is the disuse of the statutory process enacted to cover precisely this type of circumstance; to wit, Article IV of the Mental Health Procedures Act (“the Act”), supra, entitled “Determinations Affecting Those Charged With Crime or Under Sentence.” Section 7402 of that Article of the Act is concerned with incompetence to proceed on criminal charges and lack of criminal responsibility as a defense.
Given Mr. Breakiron’s mental health history, his counsel was entitled to have a determination as to appellant’s capacity to stand trial2 as well as a determination of whether a defense of insanity was available.3 Mr. Breakiron’s concern *304about the disclosure of his communications during such examinations are directly addressed by section 7402(e)(3) of the Act.4 The presence of competent counsel at the time of the examination insures a defendant will be protected from self-incrimination. The Act’s explicit language, “Nothing said or done by such person during the examination may be used as evidence against him in any criminal proceedings on any issue other than that of his mental condition” meets Mr. Breakiron’s concern and is inapposite to the psychiatrist’s statement and the pre-trial ruling of the court.
Appellant objected to the court-appointed psychiatrist because he felt prejudiced by the psychiatrist’s remarks that anything he said could be used against him. That objection, in my opinion, was substantial since the psychiatrist was in error. Appellant, under section 7402(f) of the Act, could have chosen a private psychiatrist at the expense of the mental health and mental retardation program of the locality.5
Counsel for appellant made specific reference to the Act in the certification supporting the petition that was filed on his client’s behalf. Notwithstanding, counsel proceeded without any reference to the provisions of the Act although the Act addressed the issue in question. Clearly with a history such as Mr. Breakiron’s and no psychiatric report or pre-trial determination of competency, we cannot say with certainty that appellant was competent to stand trial or that *305an insanity defense was inappropriate. It was vital that these avenues be explored when properly preparing the case. Failure to employ the relevant provisions of the very Act counsel cited as authority to the Court for the requested examination is, in my judgment, patent ineffective assistance of counsel. By not using the law enacted for such a situation, counsel abandoned his first and foremost duty to ascertain his client’s ability to stand trial. By not exercising appellant’s rights under the Act for counsel to be present and to obtain a private psychiatrist, counsel lost the important determination of whether an insanity defense to the charges was appropriate. According to this record counsel was blatantly remiss. We cannot and must not ignore the abrogation of appellant’s state and federal constitutional right to effective representation.
I am mindful the question of ineffective assistance of counsel was not raised by the parties. Nonetheless such a grievous failure to provide effective representation in a capital case prohibits the applicability of any concept of waiver. To do otherwise would undercut our entire philosophy and system of jurisprudence.
The taking of a human life, even by the state, is no light undertaking. Rule 2189 of the Pennsylvania Rules of Appellate Procedure reflects an acknowledgement of the graveness of capital cases when it provides for eight copies of the entire record to be filed in this Court: one for each justice and one for the Governor. It is understood we are to examine the total record for constitutional compliance. Additionally, the ineffectiveness of counsel is so clear the matter should be remanded and new counsel appointed to develop the argument.
ZAPPALA, J., joins this dissenting opinion.. The order of both pre-trial judges read:
[Ujpon consideration of the foregoing motion, Fayette County Mental Health is hereby directed to evaluate the defendant herein, to determine whether defendant is competent to stand trial and assist counsel with his defense, to determine if defendant was competent at the time of the incident, and to determine whether defendant is in need of treatment.
. Section 7402(e)(4)(h) states that a psychiatric report shall be submitted to the court and shall include "an opinion as to his capacity to understand the nature and object of the criminal proceedings against him and to assist in his defense[.]”
. Section 7402(e)(4)(iii) and (iv) state that the psychiatric report shall include:
(iii) when so requested, an opinion as to his mental condition in relation to the standards for criminal responsibility as then provided by law if it appears that the facts concerning his mental condition may also be relevant to the question of legal responsibility; and
(iv) when so requested, an opinion as to whether he had the capacity to have a particular state of mind, where such state of mind is a required element of the criminal charge.
. Section 7402(e)(3) states:
The person shall be entitled to have counsel present with him and shall not be required to answer any questions or to perform tests unless he has moved for or agreed to the examination. Nothing said or done by such person during the examination may be used as evidence against him in any criminal proceedings on any issue other than that of his mental condition.
. Pertinent language in § 7402(f) is:
[W]henever a defendant who is financially unable to retain such expert has a substantial objection to the conclusions reached by the court-appointed psychiatrist, the court shall allow reasonable compensation for the employment of a psychiatrist of his selection, which amount shall be chargeable against the mental health and mental retardation program of the locality.