Variants of Insanity: Justice via Psycho-legal Mapping

1. Variants of Insanity: Justice via Psycho-legal Mapping Nigel Eastman Emeritus Professor of Law and Ethics in Psychiatry St George’s, University of London

2. Legal Relevance of Psychiatric Disorder to Criminal Verdict • Historical recognition of relevance of mental disorder, in natural justice • Information from a scientific discipline, medicine, with entirely different purposes and constructs from law • Legal purposes and constructs, directed towards justice • Medical purposes and constructs, directed towards welfare • Legal ‘artifices’ versus mental health ‘reality’ • Within legal v. medical method; adversarial v. investigative

3. So … • Law uses psychiatric, welfare derived constructs… • in pursuit of abstract justice

4. Some Constructs to Consider Consider the following words/terms in regard to the discourses in which they occur • ‘schizophrenia’ • ‘bipolar disorder’ • ‘dementia’ • ‘personality disorder’ • [diagnoses] • ‘thought disorder’ • ‘depressed mood’ • ‘persecutory delusion’ • [mental state abnormalities] [all medical] [and ‘real’] [ie ‘real’ experiences in people]

5. ‘intention’ • ‘capacity to form intent’ • ‘responsibility’ • ‘abnormality of mental functioning’ • *‘insanity’ • *‘disease of the mind’ [legal][and ‘artifices’]

6. So … • In lawall words convey artificiallegal constructs (eg ‘insanity’, or ‘disease of the mind’) … • albeit law then sometimes admits constructs from otherrealdiscourses as evidence in order to contribute (only) to ‘proof’ of a legal construct … • [though with many inherent problems of communication, through evidence re real constructs contributing to proof of artifice]

7. Key Slide … Now: Law operates definitions in more than one ‘mode’ • ‘Tight’ [broad] or ‘loose’ [wide] definition … and ... • representing varying degrees of ‘(in)congruity’’ with medicine With required ‘mapping’ of psychiatric onto legal constructs, which can be variously: • ‘focused’ (ie mapping onto a ‘tight’ legal definition) • ‘blurred’ (iemapping onto a loose legal definition) • And in relation to a definition with given ‘(in)congruity’ [And the degree of ‘tightness’ will determine more/less room for ‘mapping discretion’]

8. Now, of course, criminal law could potentially ... • ‘adopt’ medical terms ‘into substantive law’ (eg ‘not guilty by reason of schizophrenia’) ... • with no paradigmatic distinction, and … • with no evidence used in proof other than psychiatric expert evidence • So there would be ‘identical’ construct mapping [although ? unlikely... because law ‘guards its own ‘purpose’ and ‘discourse’][but see S.44 Norwegian Criminal Code]

9. Law’s Problem So • Law’s problem is to determine whether, or to what extent, and in what manner to reflect ‘psychological reality’ in its own ‘mental and responsibility constructs’ • **If it directly adopts medical definitions then it abdicates its responsibility for justice to medicine (? as in S.44 Norwegian Criminal Code) • **If it fails to reflect any aspect of medical reality then it runs the risk of being ‘unjust’ • A ‘psycho-legal catch 22’!

10. INSANITY DEFENCES COMPARED So, in context of ‘insanity’, compare … • E&W insanity • E&W proposed reformed insanity (Law Commission) • Scottish insanity [new statutory test] • Norwegian Criminal Code S. 44 [reformed 1989]

11. With: Categories of Symptoms/Signs of Psychosis PotentiallyRelevant to ‘Proof’ of Insanity Distinguish into … • Cognitive • Process • Content • Perception • Mood • Biological • Behavioural [But, all legal definitions characteristically limited to ‘cognitive’]

12. Therefore: … exercise in comparative law… becomes .. exercise in comparative psycho-legal mapping

13. Insanity in England • Defect of reason such that … • did not know nature and quality of act, or • did not know it was (legally) wrong

14. Ie • Restricted in regard to psychological domains ‘allowed’ • Very high threshold • Tight • Highly incongruous (because so ‘partial’) [compare ‘diminished responsibility’]

15. Criminal Justice and Licensing (Scotland) Act 2010 • A person is not criminally responsible for an offence if they were unable to *appreciatethe nature or wrongfulness of an act by reason of mental disorder • [* compare with ‘know’] • [But explicitly excludes personality disorder characterised solely or principally by abnormally aggressive or seriously irresponsible conduct.] • Less tight • Somewhatless incongruous

16. Law Commission: perceived problems with insanity in E and W “Disease of the mind” • Not necessarily a ‘disease’ in the medical/ordinary sense of that word; egsleepwalking, epilepsy or diabetes • Hence …“disease of the mind”is not limited to mentaldisorders! • Instead… law has adopted a distinction between whether the cause of the accused’s behaviour was due to an “internal factor” (ie some malfunctioning of the person’s body) or an “external factor” (such as a ‘external blow’eg to the head). • But: “External factor” does not includesome external factors, “the application to the body of external factors such drugs, anaesthetics, alcohol and hypnotic influences”.

17. “This leads to illogical and strange results .... • … as the application of the law to diabetics demonstrates … • … since both hyperglycaemia and hypoglycaemia may be caused by both ‘external factors’ (alcohol or insulin) or‘internal factors’ (lack of food or insufficient insulin).”

18. Also, there is a problem with ‘psychological blow’ cases, where the accused enters into a ‘dissociative state’ following a traumatic event … here the cases are not consistent. • And … both internal and external factors may operate simultaneously (for example, re sleepwalking, there may be an external trigger).

19. The law is out of step with medical understanding • The difficulty of knowing what has to be proved (eg what is ‘the act’) • The burden of proof lying with the accused … so the D may be convicted where the jury finds that it is 51% likely that he is sane. Ie‘guilt on balance of probabilities’. • The label “insanity” is stigmatising and inaccurate

20. Inequality and discrimination …the law should protect mentally disordered offenders from arbitrary detention as it protects any other kind of offender ... so can be comparative disadvantage … relevant to many in the population.

21. Reform of Insanity England and Wales Law Commission for E and W ‘not guilty by reason of a recognised medical condition’ • Appears, initially, to ‘give over’ to experts Appears similar to Butler Report (1975):

22. Butler Report (1975): • ‘not guilty on evidence of mental disorder’ • [“ theoretically possible” for there to be no element of causation, but “very difficult to imagine a case in which one could be sure of the absence of such a connection”] So mapping that is ‘focused’ onto virtually an ‘identical’ construct

23. But ? • A ‘cop out’ position for law, • Avoids (the need for) definition of any construct of ‘responsibility’ • Illness is presumed to infer reduced(?) or absent responsibility • [A legal defence essentially with an eye on disposal]

24. Hence: • (almost?) ‘perfect/identical mapping’ of … • notmedical constructs onto legal ones, • butlegal onto medical! • [But: within ‘identical mapping’, how ‘loose’ the (legal) construct is deemed to be depends upon the view of ‘tightness’/’looseness’ of medical definition of ‘mental illness’, see later]

25. But [returning to Law Commission reform proposal]… ‘not guilty by reason of recognised medical condition’ • only appearsas if to ‘give over’ to experts Not so… “So that … • D wholly lacked the capacity to • rationally form a judgment • understand the wrongfulness of (his actions) • control his physical acts in relation to the relevant conduct of circumstances”

26. BUT Non-qualifying ‘recognised medical conditions’: • “Personality disorders manifested solely or principally by abnormally aggressive or seriously irresponsible behaviour” • Acute intoxication (cp ‘dependence syndrome’)

27. So • Still very narrow domains and high threshold • Law keeps to itself the relevant construct, and so there is still construct mapping of medical evidence onto a (purely) legal test • And mapping is still highly focusedbut (? less) incongruent

28. BUT • Low priority for reform … • given that the problems, in practice, are ‘got around’ • [do we agree?]and/or[?does offence to ‘justice’] And • ‘unfitness to plead’ reform is more pressing and urgent.

29. S.44 Norwegian Criminal Code • Equating of (medical) ‘psychosis’ with (legal) ‘insanity’

30. CONSIDER ‘THE CASE’ IN TERMS OF EACH INSANITY DEFINITION? • Although all definitions but the Norwegian definition are variously ‘incongruous’ and variously ‘tight’, subtle variations of definition are capable of giving differing results in a given case ? Re tonight’s case … • ‘causation’ (‘attitudes’ or ‘psychotic symptoms’) at the centre, in regard to ‘knowing the actions’ • Also, whether believed erroneously was ‘acting lawfully’.

31. CONCLUSIONS RE ‘PSYCHO-LEGAL MAPPPING’ • Whatever your view of the notion of ‘psycho-legal mapping’ as a way of ‘exploring’ and ‘explaining’ the relationship between psychiatry and law … • (?) it is relevant/helpful to lawyers and clinicians struggling with the relationship … • In order better to understand the nature of ‘two ships passing in the night’ …

32. … and perhaps to avoid at least some ‘collisions’!