Discuss critically the extent to which mental disorder affects responsibility for criminal conduct

This analysis focuses on the effect of mental disorder on legal criminal responsibility and the extent to which it is effectively dealt with under the criminal justice system, particularly focusing on the defences of insanity and diminished responsibility.

The controversial defence of insanity stems from common law rules created in 1843 and debate has raged over the lack of clarity regarding its scope, which has resulted in questionable decisions. This analysis further consider the extent to which diminished responsibility has accommodated deficiencies in the insanity defence and analyses the role of mental disorder offenders, raising questions as to whether mental disorder offenders should actually be diverted from the criminal justice system, in order to be dealt with more effectively.

The law does not punish those who have no capacity to commit an offence, which is important in protecting interests of mentally disordered individuals by providing facilities for rehabilitation and treatment, whilst simultaneously protecting the public. This issue has received extensive consideration in homicide defences and is particularly relevant to the defence of diminished responsibility, insanity and recently to provocation . However, this general principle of UK law as often been applied inconsistently, creating uncertainty as to the appropriate application of the defences and what their boundaries are when determining responsibility for criminal conduct.

The M’Naghten Rules (“the Rules”) were established by the House of Lords in 1843 and intended to prescribe the circumstances in which individuals were to be held as having capacity to be criminally responsible for their conduct. The Rules provide that an individual is presumed sane unless it can be proven that at the time of the offence he was “suffering from such defect of reason, from a disease of the mind as not to know the nature and quality of the act he was doing or if he did know, that he did not know what he was doing was wrong” .

It is the interpretation of “disease of the mind” that has proved most controversial. According to the Rules, this definition is a legal definition, not medical. As a result, submitted evidence of two medical practitioners as required under the Criminal Procedure (Unfitness to Plead) Act 1991 in order to establish the defence of insanity has been overruled as the courts have continued to interpret the Rules to include within the definition states of mind that the medical profession would not classify as a “disease of the mind”. This is further highlighted by established case law. For example, in the case of Kemp , it was asserted that “disease of the mind” meant any internal disorder affecting the ordinary faculties of reason, memory and understanding so that the condition of the brain was irrelevant . This ad hoc approach to the concept of “disease of the mind”, which is not always reconcilable with established medical expert opinion further heightens uncertainty with regard to the level of mental disorder required to constitute insanity. It further has far reaching consequences for other conditions such as epilepsy and sleepwalking, which have given rise to a finding of legal insanity.

For example, in the case of Sullivan , the defendant kicked and injured a friend during an epileptic seizure. Despite medical evidence asserting that a disease of the mind was a disorder of brain functions for a prolonged period of time and further asserting that a seizure was not a disease of the mind, this was held to be irrelevant. It was found that the defendant’s epilepsy had during the course of the actual seizure caused impairment of faculties, which in turn caused a defect of reason, thereby satisfying the legal definition of insanity.

Despite the policy reason for these decisions to protect the public interest from conditions resulting in a propensity to violent behaviour , there are many serious mental disorders that may not result in violence, yet would medically be considered to suffer from a disease of the mind. Not only does this muddy the waters as to the exact boundaries of criminal responsibility and requisite mens rea, it also seems absurd and unfair to label epileptics as dangerous compared with those suffering from psychosis for example.

This also highlights flaws in the legal defence of insanity and the criminal justice system, in failing to provide adequate social services necessary to deal effectively with mentally disordered offenders. Home Office Statistics demonstrate an increase in the number of offenders on early release from custody, along with an increase in the number of offenders subject to hospital orders under the Mental Health Act 1983 (“the Act”). If mentally disordered offenders are slipping the net and not receiving necessary treatment and care due to not satisfying the legal test of insanity, this clearly seems to be contrary to the public interest, which is the fundamental basis of the courts’ reasoning when determining insanity pleas.

Another limiting factor to the insanity defence when considering criminal responsibility is that the disease of the mind must arise from an internal factor. In the case of Quick , the Court of Appeal held that the defence of insanity was not available as the defendant’s condition was caused by failure to take insulin, which was external. However, a distinction was drawn in Hennessy , where it was held that the condition was a symptom of diabetes and therefore the defence of insanity was available. However, this distinction seems flawed as it is an attempt to distinguish between conditions caused by a disease of the mind which may recur and pose a threat to the public.

Once the disease of the mind has been established, it must then be proven that it induced a defect of reason and the courts have interpreted this as a complete loss of power or reasoning and that the defendant does not know the nature and quality of his act . Again, this is very stringent and outside of medical opinion that even psychotics can appreciate the nature and quality of their acts.

This is further exasperated by the courts’ tendency to adopt a narrow interpretation of the requirement. In the case of Windle , it was asserted that the relevant test was whether the defendant knew that its actions were in breach of law. The issue of whether the defendant knew what they were doing was morally wrong was not held to be relevant. However, this leads to undesirable results. In Sutcliffe , the defendant was a schizophrenic, however had a clear knowledge and appreciation that his actions were contrary to the law and was therefore held not to be insane. This in itself would suggest that this is not a satisfactory test for criminal responsibility and surely not in the public interest where on the one hand schizophrenics may not be considered legally insane, yet the rules are stretched to cover diabetics and epileptics.

The danger in cases like the above is that a defendant clearly needs to be in care with the appropriate facilities yet is sentenced to a prison term, which raises the question as to whether mental disorder offenders should actually be diverted from the criminal justice system. Furthermore, in the event of conflicting medical evidence regarding mental disorder, juries are required to determine whether the defence of insanity or diminished responsibility can be used. This clearly raises concerns as to whether it is appropriate for inexperienced jurors to determine the complexities of mental disorder in the context of criminal responsibility.

Additionally, the criminal defence of insanity seems to be incompatible with the civil law position under the Act. The Rules have been stretched to cover epileptics and diabetics, a category that is highly unlikely to be committed under the Act, while omitting others that although not legally insane, would be committed according to established medical opinion. This highlights the fundamental issue of what actually constitutes a mental disorder for the purpose of determining legal criminal responsibility, which is clearly in a current state of confusion.

The defence of diminished responsibility was initially hailed by critics as a welcome move to alleviate the uncertainties created by the insanity defence. Established by the Homicide Act 1957, the defence requires proof that the defendant was suffering from “abnormality of mind”, which “substantially impaired” mental responsibility for their acts .

With regard to criminal liability, the defence of diminished responsibility is determined by the jury. This in itself raises questions as to credibility of the defence, as it leaves the concept of diminished responsibility being open to being interpreted “in accordance with the morality of the case rather than the application of psychiatric concepts” . There is a danger of allowing the sympathy factor to play a part in mitigating the sentence, which deviates from the fundamental issue of criminal responsibility .

The above analysis demonstrates that the substantive defence of insanity and its application by the courts is in many ways out of touch with medical practice, with the defence sometimes not being available to those with genuine mental impairment in instances where there is a genuine mental disorder. The courts’ ad hoc approach to the insanity defence and insistence on distinguishing between legal insanity and medical insanity has led to absurd results. Furthermore, the defence of diminished responsibility has not alleviated this uncertainty as it also lacks clarity of scope and has led to decisions being made on the basis of moral policy, which clearly is no aid to the fundamental issue of what actually constitutes mental disorder for the purpose of criminal liability.

The Law Commission’s draft criminal code is a welcome move to clarify the position, providing a comprehensive list of problems that may constitute mental disorder to aid judges .

The mental health issue is only considered once the crime has actually been committed due to the presumption of sanity the civil law is severely restricted in intervening before the defendant enters the criminal justice system. It is the criminal law that to a great extent actually draws attention to the mental disorder, which raises the question as to how effectively the state is able to deal with this.

However, the current criminal justice system’s ad hoc approach to mental disorder fails to adequately address the fact that mental disorders are often contributing factors in criminal offences and ignores the complexities of the relevant issues. Overall it would seem preferable for mental health issues to be dealt with outside the criminal law arena, until a coherent set of principles are established and consistently applied.

Bibliography

Mason & McCall Smith, “Law and Medical Ethics”, Butterworths, 6th edition 2002
Card, Cross and Jones “Criminal Law”, Oxford University Press, 16th Edition 2004
Smith and Hogan, “Criminal Law Cases and Materials” Butterworths, 8th Edition 2002
Law Commission Draft Criminal Code, accessed at www.lawcom.gov.uk
Michael J Allen, “Textbook on Criminal Law”, Oxford University Press, 7th Edition 2003
Dine and Gobert:, “Cases and Materials on Criminal Law” Blackstone Press, 2000
Simester and Sullivan: Criminal Law, Theory and Doctrine.
E J Griew, “Let’s implement Butler on Mental Disorder and Crime” [1984] CLP
Rethink Policy Statement 19, “Diverting people with a severe mental health illness from the criminal justice system to health and social services care”.
www.homeoffice.gov.uk
www.rethink.org

Please note: The above essays and dissertations were written by students and then submitted to us to display and help others. Thanks to all the students who have submitted their work to us.