Legal insanity: explorations in Psychiatry, Law, and Ethics - 306


Gerben Meynen. International Library of Ethics, Law, and the New Medicine 71, Springer International Publishing Switzerland 2016

Legal Insanity is a legal concept bound to legal jurisdictions, not a medical or psychological concept, yet psychiatry and psychiatrists are essential actors in this area of law. This book is a fascinating piece of scholarly work to outline the key issues related to the concept of legal insanity. This book explores the theoretical grounds for the concept from legal, ethical, and psychiatric perspectives, and examines the issues and constraints in its practical application.

The key questions around the intersection of mental illness, crime and legal responsibility are: Who and why mental illness affects criminal and moral responsibility? How does mental illness affects the responsibility for action? How does mental illness affects the moral responsibility? Even if we were to argue that mental illness affects knowledge, behaviour, rationality, free will, and autonomous decision making; why is mental illness considered to have a differential effect on responsibility for action or moral responsibility than state of passion, jealousy, or intoxication, or psychopathy?

On a societal and practical level, common angst against this defence among lay public is about why should someone with mental illness can get away with crime? On one hand, it undermines public confidence in the legal system as only the rich can afford a good defence and an expert doesn’t have to take responsibility, whilst on the other it further perpetuates stigma against mental illness and reinforces fear about mental illness and violence. Resentment is also that the law relies on expert’s opinion, whilst the experts can be open to personal or professional biases. In any case, the issue of how does mental illness affects a person’s behaviour is confusing for all. When a person can go through detailed planning and maintain a clear personal reasoning about their action, why are they not responsible for that action. Aren’t most people influenced by some sort of irrational thinking when engaging in violence against others or self? After all, It has been abolished in Sweden and 4 states of USA (Idaho, Kansas, Montana, Utah).

Common lay concerns against the insanity defence and counter-arguments:

1.Uncertainty about assessing past mental state
Assessment of mens rea in any trial is a past mental state; part of any clinical psychiatric assessment; challenges of assessment in specific symptoms, which may have been present only for a short period, and how did they influence the committing of the crime; but doesn’t need to prove beyond reasonable doubt, only the preponderance of evidence
2. Expert testimony
judge and jury relies on Psychiatrist as a mediator due to complexity of mental illness; report an interpretation, and selection by the psychiatrist as to what information relevant; value judgement by the psychiatrist; not unusual in law to make value judgements
3. Undermines deterrence
Defence raised in very small no of cases and only a quarter successful; but the symbolic value to the public, also limited knowledge among public of the facts; detained in psychiatric institution indefinitely, only some cases with less time detained; also, period in prison during trial
4. Faking the symptoms
Very small no of successful cases for widespread faking; professionals alert to the possibility; more or less similar time detained in psychiatric hospital
5. Only for the rich
It is true that money can help in raising good defence, but a systemic problem in criminal law;
6. Mental disorder concept
a myth, a disease model, loss of meaning model, or DSM definition – all with pros and cons; psychiatrist concerned with cure and care rather than concepts
7. Lack of clarity re criteria
It is true; controversy regarding various aspects as loss of control or irresistible impulse
8. Determinism and responsibility
Deterministic view can provide various causal explanations for all behaviours; still morally and legal responsibility
9. Stigma of mental illness
Can perpetuate stigma by taking away responsibility for one’s actions
10. Hired guns
Real issue, needs education and training
11. Too rare for the trouble
Important for a fair system

Theoretical exploration

Legal Perspective
– Insanity defence important for fairness (just like a young child can’t be blamed) and moral integrity of criminal law.
– Consequentialist conundrum – threats of punishment would not serve the deterrence purpose for an insane person, nor would the punishment would make them learn the moral lesson, so the defence is important. However, the defence may undermine the deterrence in the general society as it could be perceived as a way to escape prison.
– However, practical issues around defining a legal criteria? What should be the reasonable Burden of Proof regarding what must be proven, sanity or insanity? Who should prove it? What is the standard of proof – ‘beyond reasonable doubt’, by a preponderance of the evidence’, ‘by clear and convincing evidence’, or ‘by balance of probabilities’?
– Could legal responsibility be better adjudicated by considering degree of responsibility – usually three, Responsible / not responsible / partially responsible; but five in Netherlands (though changed recently to 3)?
– Should the system be an inquisitorial or an adversarial process?
– Should the application of the defence be based on severity of violation, proof, or the severity of disorder?

Common legal insanity standards – key points and limitations

1. Plato’s Law
Who raise it; insanity/old/very young/disease; insanity at the time of offence; restitution if murder.
2. Wild Beast Test
13th century; no understanding or memory; does not know what he is doing; child / brute/wild beast; no diagnosis; no temporal relationship
3. M’Naughten test (Ignorance test)
1843; disease of mind – defect of reason – lack knowledge (nature/quality/wrongfulness); wrongfulness, whether moral or legal?; no explicit causal connection; doesn’t include cases with defect of will
4. Irresistible Impulse test (Compulsion test)
1887; disease of mind – lack of power of will; can’t prevent from acting; causal relationship; no premeditation or planning; no criteria to define irresistible impulse vs impulse not resisted; what about cases of kleptomania, paedophilia, or pyromania?
5. Model Penal Code (ALI test)
devised by American Law Institute in 1968; mental disease or defect – substantial lack of capacity to appreciate wrongfulness or conform conduct to law; lack of control is unclear conceptually, difficult to evaluate and unnecessary.
6. Durham test (Product test)
1954; unlawful act is a product of mental disease or defect; psychiatrist to decide.
7. Norway (Medical Principle)
Psychotic, unconscious, or mentally retarded to a high degree at the time of the act.
8. Netherlands (No standard)
by reason of mental defect or disease, can’t be held responsible; 5 degrees of responsibility.

Ethical Perspective

Illegal acts are punished because it is morally blameworthy, however, to be responsible for the act one needs to have an intention to cause the act, which is an act of free will. Can it be argued that the free will is impaired in mental disorders and other conditions, like addiction, thus the persona can’t be responsible?

Initial aspect of the debate is whether humans have an agency to form free will or our actions are determined by nature, such that we can’t exercise free will to modify our actions? If the actions are determined by nature, then we can’t be responsible for our actions, and any determining hypothesis would be an excuse.

However, there are three camps – Hard determinism camp (actions are determined, free will is an illusion, Libet’s study about unconscious impulse forms before the action), Libertarianism camp (nothing is predetermined, free will is possible, we are always responsible for our actions), and the Compatibilist camp (one can have free will in all extents except when there are certain conditions present which may constrain free will, like mental disorders).

There are other independent ethicists/neuroscientists with additional views, like Gazzaniga has proposed that even if brain is determined, moral responsibility can still be there because it is a social construct, not a neurological. Morse has proposed that the basis for excuse from responsibility in mental disorders is due to impaired capacity for rationality, not an issue of free will.

Overall, the author accepts Henrick Walter proposed three key arms to define Free will – acting for reasons (most people with mental illness would still have their own reason to commit crime, however, excusable conditions like tic where it just happens, no reason), able to do otherwise (impaired in conditions like command hallucinations, or Tourette’s syndrome), and being the source of action (excusable condition like organic induced mania or psychosis, where the person is not himself). Thus, responsibility can be excused in many mental disorders through this three prong definition of free will. However, these three arms do not cover all conditions, like with delusions, the person may have reason, ability to consider other alternatives, and still is his own person to commit the act. Thus, there is a requirement of additional principles.

If we consider Aristotle’s knowledge and ability to control as underlying principles for responsibility – lack of knowledge or distorted knowledge leading to distorted view of reality (McNaughten’s criteria); concept of control is linked to Free will, as it is capacity to exercise free will by controlling one’s actions.

Can irrationality be also an excusable condition for criminal responsibility? Rationality difficult to define, an important heuristic tool but not a suitable criterion for the defence.

Thus, the excusing principles for mental disorders from an ethical perspective – three prong approach of Free Will (even though Free will is not explicitly mentioned in legal criteria, but included in the form of lack of capacity to control, like in Model Penal Code criteria) + lack of knowledge.

However, this would still leave some controversial areas, like impulse control disorders or psychopathy. Can strong urges, like in impulse control disorders, also be excusable conditions? Resisting strong urges is difficult, but alternatives are always available to the person (like not going out to the shops if the person experiences strong urge to steal in Kleptomania), also undermines the social construct of crime which uses punishment as a deterrent for people to not act on their urges. This may offer mitigating options if less severe crime or the strength of urges too hard to resist.

If the issue is of moral responsibility then what about people who may have moral insensitivity, like psychopaths, can they be considered as responsible, even if they exercised their free will? it is uncertain and unclear area with strong arguments both sides, however, controversial.

Psychiatric Perspective

The author used the concept of competency assessment to drew parallel with psychiatric assessment for legal insanity.

Autonomy — Free will —- Decisions ———– Responsibility, accountable Competency
If an autonomous person uses free will (free choice, free action) to make a decision, then as long as he is competent (decisional capacity), he could be considered as responsible and accountable for his actions.

Is the legal insanity issue similar to lack of competency to make decision, thus person can’t be hold accountable for their own actions? Similarities are – both assessments at interaction of medicine and law; both concern a person’s mental state in relation to a specific act; psychiatrists are considered to be experts for both; both assessments have immediate practical consequences; concepts of free will and free choice are associated with both; responsibility is relevant to both; autonomy (responsibility and accountability related to issue of control, which is then related to autonomy; if one can make decisions from one’s desires and can control if he does not want to act, then the person is autonomous to make decisions; autonomy is related to free will, free choice, free action to make the decision, and as long as person is competent to make decision, the person is responsible and accountable for his actions) is relevant to both; both normative judgements; both are exceptions. Differences are – settings are different, the legal implications are different; competency is prospective while insanity evaluation is retrospective; one is a medico-legal construct while other is a legal construct.

Key components of Competency assessment are – to communicate a choice (consistently) +/- to understand the relevant information +/- to appreciate the situation and its consequences +/- to reason about treatment options

One can be incompetent to make decision even in the absence of mental disorder; should mental disorder based insanity defence be replaced with incapacity? Just like a child can’t be prosecuted for a crime, because they lack the required capacities, the same can be the case if the person did not know that quality, nature, or wrongfulness of the action, irrespective of the cause. Mental disorder is neither necessary nor sufficient for reduced responsibility. However, mental disorder is the objective marker to the criteria. Even though often the mental disorder is a subjective illness.

If the insanity defence was modified on the competency standards, then it would look something like this: at the time of the crime, the person lacked the ability to control his actions by his decisions +/- to understand the legally/morally relevant information +/- to appreciate the situation and its consequences, +/- to reason about the behavioural options that are available.

In regard to the likely impairment of decision making capacity in mental illness, the author proposes the three stage model of decision making – options generation (requires creative or spontaneous mental activity; eg impaired in depression, psychosis) + option selection (after critical evaluation and sufficient reflective self control; eg impaired in impulse control disorders, psychosis) + action initiation in keeping with the selection (eg impaired in depression, mania).

All three stages can possibly be affected in different mental disorders. It provides a clear way of how mental illness impacts on decision making. Can be applied as a heuristic tool in the forensic evaluations. McNaughten’s criteria does not take into account the importance of reflective self-control or impairment at the action generation stage. Model Penal Code, however, comes close to considering the impairment in all three stages of decision making.

“Only defendants with impairment that places them at the very bottom of the performance curve should be considered insane.” (Paul Appelbaum)

There are new frontiers with advance of Neuroscience in the recent decades. There is intense debate on the application of neuroscience findings to help define and evaluate insanity. For example, decisional impairment is often found in people with Schizophrenia, which has been attributed to orbito-frontal cortex dysfunction, which may indicate that, although more subtle to observe than delusions, decisional impairment may also be part of the explanation why a schizophrenic patient who suffers from delusion commits a crime. Furthermore, there is ongoing research in the neuroscience of decision making. However, insanity is a normative judgement, and the final arbiter is the law, so even if ‘brain abnormalities’ were to replace ‘mental disease’ the norm and arbiter would remain in place. Additionally, still the validity and reliability of neuroscientific findings is not perfect, thus neuroscience can only be a tool for additional evidence.

“it is simplistic as well as inaccurate to say that the cause of violence among mentally ill individuals is the mental illness itself” (Elbogen and Johnson 2009)

Issues and constraints in the practical application

“Legal insanity is a legal matter. Insanity is not a medical term … not even a medico-legal term … and the ultimate decision is, in every case, up to the judge or jury.”

1. Legal insanity as part of the legal system
Fairness and moral; not to confuse with dangerousness or recidivism
2. Medicine or Law
Clear division of role of experts and the judge or jury
3. Moral intuitions and moral theory
should be consistent with common moral intuitions and moral theory, taking into account the divergence of moral views and intuitions in society
4. Clarity of criteria
should facilitate clear, straightforward legal decision-making in criminal cases, which could help that the idea behind the defence would work out in practice as intended, promote equality before the law, and increase the transparency of legal decisions
5. Components of the criteria
Two common elements – Lack of knowledge/ appreciation and Lack of behavioural control
6. Mental disorder concept
a myth, a disease model, loss of meaning model, or DSM definition – all with pros and cons; psychiatrist concerned with cure and care rather than concepts;
Should mental disorder be an explicit requirement for insanity? Should mental disorder be defined medically or legally?
7. Lack of clarity re criteria
It is true; controversy regarding various aspects as loss of control or irresistible impulse
8. Burden of proof
burden of proof regarding what must be proven, sanity or insanity? Who should prove it? What is the standard of proof – ‘beyond reasonable doubt’, by a preponderance of the evidence’, ‘by clear and convincing evidence’, or ‘by balance of probabilities’?

Insanity should be clearly distinguished from the risk of recidivism. The motivation for having a defence, therefore, should have to do with morality, fairness, and justice, rather than with dangerousness and risk reduction.

Cues: expert have to assess past mental state, against unclear criteria of law or mental disorder, which can be either faked or rich can hire helpful experts and not take responsibility for their own actions, thus there is no deterrence from doing it again. Either way it is too rare, and when successful, it only further stigmatizes mental illness.

Cues: Moral responsibility, Free Will, and determinism; philosophical arguments around compatabilitic / deterministic/ liberalistic positions or about rationality or responsibility as a social construct. Legal principles of three prong Free will, Knowledge, and Control

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