The insanity defence

  The coercion controversies in psychiatry are about unfairly depriving individuals of their rights. An important motive in early mental health legislation, however, was to protect patients from being punished for crimes they committed when unwell. Society has always felt uncomfortable about such punishments. The crime of infanticide was distinguished from murder because 19th-century juries refused to convict and send to the hangman mothers who killed their babies while suffering post-partum psychoses.

  The importance of establishing criminal intent (‘mens rea’ or ‘guilty mind’) has guaranteed a long and tortured relationship between psychiatrists and the courts. Agreeing whether or not someone was insane at the time of the crime (i.e. unable to judge the significance of their acts and realize that they were wrong) has in principle been fairly straightforward. However it is often far from easy in the individual case. Similarly floridly ill patients, unable fully to understand what is going on in court, may be judged unfit to plead and admitted to hospital for treatment. Most countries will accept the decision of unfit to plead on the basis of a psychiatric assessment or will return a not-guilty verdict on the grounds of insanity.

  The real problems in court concern diminished responsibility on the grounds of mental illness – particularly where the criminal behaviour itself is the clearest manifestation of the disorder. It is less a problem with a grossly disturbed individual whose crime is just one among many signs of the illness (such as a manic patient in court for reckless driving but who also at that time is not sleeping, dressing in outrageous clothes, and spending all his money). Proposing personality disorders as a defence (i.e. because a psychopath does not notice or care about the distress caused) strikes at the concept of free will and personal responsibility that is the very foundation of criminal justice systems. Most criminals have had dreadful childhoods. Many have been abused. Few have skilled jobs or stable families to fall back upon. So it is not surprising that we may temper justice with mercy. But is there not a circularity in citing the very qualities that give rise to the crime as an excuse for a reduced punishment? This ethical dilemma is particularly sharp in individuals with Asperger’s syndrome (a mild form of autism) who cannot see the world from the other’s perspective and cannot interpret others’ motives even though they may desperately want to.

  In practice the more serious the crime and the greater the risk, the easier the decision. Where the alternative to a guilty verdict and prison is hospital care (and sometimes secure hospital care) courts and juries feel more comfortable to make the allowance. In lesser cases, where punishment is not so severe, and might just deter a repetition, it is argued that a psychiatric defence is unjustified and probably does the individual no favours in the long term. Thomas Szasz (Chapter 5) insists that the psychiatric defence is a denial of the fundamental rights and obligations of the individual. A psychiatric defence is generally accepted for individuals where the disorder is plainly there for all to see.

  Sometimes the only evidence of a disorder is the crime. There have been several high-profile cases of murder where the perpetrator denies any memory, claiming it occurred during an ‘automatism’ (a dream-like or dissociated state). In even more extreme cases ‘multiple personalities’ have been proposed where a single individual has several fully developed identities, each completely independent of each other. This is a very attractive concept which captures the popular imagination (e.g. Robert Louis Stevenson’s 1885 novel Dr Jekyll and Mr Hyde, and the 1957 film The Three Faces of Eve).

  The postulated mechanism is that some mental functioning is so successfully repressed that it is only accessible through deep psychotherapy or ‘triggered’ in highly specific situations. This is of enormous psychiatric/legal significance in cases of alleged childhood sexual abuse. The extent to which children are exposed to sexual abuse by family members has long been controversial in psychiatry. The pendulum has swung back and forth between considering it a common trauma that causes neuroses to the alternative belief that it is rare and most reports are ‘false memories’ arising from current distress and confusion. Currently the presumption is in favour of believing the adult who complains of child sexual abuse. This has resulted in high-profile cases splitting families when ‘recovered memories’ have been unearthed. Psychiatrists appear on both sides of the case, stressing either the damaging impact of abuse, repressed over many years, or, conversely, the patient’s suggestibility in over-enthusiastic therapy.