Conclusion: Reform Proposals, Looking Forward
By way of conclusion this final chapter will seek to tie together the themes of the book and suggest avenues for future research. To this end, this chapter will indicate how the reform proposals discussed in Chapters 4, 5 and 6, are guided by the various competing ‘options for reform’ noted in Chapter 1. Additionally, this chapter will indicate how the analysis in Chapter 3 of the various factors constituting the concept ‘disease of the mind’, inform these same reform proposals. Finally, this chapter will suggest how by focusing on some of the doctrinal, evidentiary, and substantive problems which the reform proposals raise further research might take the work forward.
As discussed in Chapter 1 there are various ‘options for reform’ which must be taken into account by any reform program which seeks to develop a principled approach to determining the boundaries of the defence of insanity and the doctrine of automatism. Succinctly stated the relevant ‘options for reform’ include ensuring that the scope of the defence of insanity and automatism is not drawn too broadly so as to exempt from responsibility individuals who choose to engage in criminal activity while being able to both distinguish between right and wrong and control their conduct. This matter is taken up in the context of Chapter 4. Another factor to be considered when formulating a reform proposal involves ensuring that those conditions which are recognized as exempting an individual from responsibility are not overly restrictive in their range. This option is acknowledged in Chapter 5. The final option for reform is the requirement that there exist a consistent set of rules which will allow triers of fact to determine the appropriate verdict for an individual. The proposal put forward in Chapter 6 seeks to implement this option.
While Chapter 1 considered the various ‘options for reform’ which any reform proposal should consider Chapter 3 explored the various factors which assist the court in determining whether a ‘disease of the mind’ has been established. These factors include a judgment of responsibility, clinical evidence, and community interest. The judgment of responsibility articulates the intuition that it is unjust to punish an individual who lacks the ability to distinguish right from wrong or control his or her conduct. The judgment of responsibility was used in Chapter 4 to determine a defendant’s liability for states of ‘drug-induced psychosis’ arising from the voluntary use of illicit drugs.
The clinical evidence aspect of the enquiry allows a diagnosis of an accused’s condition to be made in the light of recognised diagnostic categories and an assessment made of the likelihood of such a condition recurring if he or she is released into the community. Chapter 5 made use of a clinically recognised diagnostic category to argue for the recognition of an independent volitional limb at common law.
The community interest aspect of the ‘disease of the mind’ enquiry is concerned with considerations of societal protection in the light of the likelihood that an individual’s mental impairment might recur. To this end the correct characterization of an individual’s state of mind is of relevance to the community interest aspect of the enquiry. This aspect of the ‘disease of the mind’ enquiry was utilised in Chapter 6 in order to formulate a new defence of ‘Impaired Consciousness’.
The remainder of this chapter will consider how the above reform options and relevant factors constituting a ‘disease of the mind’ both inform the reform proposals in Chapters 4, 5 and 6, and might guide further research.
I begin with a discussion of the reform proposal canvassed in Chapter 4 determining the criminal liability of an individual who has experienced a state of drug-induced psychosis through the voluntary consumption of illicit drugs.
Chapter 4 utilized the judgment of responsibility aspect of the ‘disease of the mind’ enquiry discussed in Chapter 3 to provide a principled response to several questions posed by the voluntary use of illicit drugs resulting in a state of non-responsibility. Motivating the discussion was a desire to ensure that the scope of the defence of insanity was not overly broad so as to result in the exculpation from responsibility of individuals who choose to engage in criminal activity while being able to both distinguish between right and wrong and control their conduct.
The chapter began by drawing a distinction between two varieties of question, one clinical the other normative. For the purposes of Chapter 4, only the normative question was of concern, asking whether an individual who has voluntarily consumed drugs that have led to a state of psychosis (‘drug-induced psychosis’) should be allowed to raise the defence of insanity.
Ultimately, the chapter endorsed one particular explanatory approach, Meta-Responsibility, in order to address the issue of an accused’s responsibility while in a state of ‘drug-induced psychosis’.
It was argued that Meta-Responsibility is an intuitively attractive option for assessing an individual’s responsibility for bringing about a state of non-responsibility for a number of reasons. First, it articulates the idea that, in keeping with the ‘judgment of responsibility’ aspect of the ‘disease of the mind’ enquiry, responsibility is a historical phenomenon. That is, whether an accused will be held responsible while in a state of psychosis will depend in part on how such a state arose, in particular, whether such a state has been brought about through the accused’s ‘fault or nature’.
A further reason for the intuitive appeal of Meta-Responsibility is that it is in keeping with one of the ‘options for reform’ determining the boundaries of the insanity defence. In particular, it ensures that the scope of the defence of non-responsibility is not drawn too broadly. Meta-Responsibility restricts the defence by ensuring that an individual who has acted in a rational autonomous fashion in bringing about a state of non-responsibility should not be allowed to benefit from his or her state of non-responsibility. Hence, according to Meta-Responsibility an accused will be held responsible for conduct performed in a state he or she brings about in a conscious and voluntary fashion even if as a result of such a state he or she is rendered incapacitated.
On the basis of the analysis undertaken, Chapter 4 proposed that the following question be asked in order to determine the responsibility of an individual who has brought about a state of ‘drug induced psychosis’ through the voluntary consumption of drugs:
Did the accused intend or foresee or ought to have foreseen that he or she would enter a psychotic state and commit the offence?
Where it is established that the accused has performed the act voluntarily and knew, or ought to have known, that by so doing he or she thereby risked becoming psychotic and committing the offence, he or she will be held morally responsible.
In contrast to the above approach, the Victorian Law Reform Commission (VLRC) in its Defences to Homicide Report1 adopted the view that the causal antecedents of an accused’s state of mind should be treated as irrelevant to his or her responsibility. The VLRC was critical of what it felt was an overly narrow approach adopted by the common law as exemplified in the case of Sebalj.2 In respect of Sebalj the VLRC argued that the fact that the accused was psychotic at the time of the offence should have been sufficient for him to be held non-responsible.
The reform proposal suggested in Chapter 4 was applied to the case of Sebalj in an attempt to understand the ruling in that case. Ultimately, it was acknowledged that as Sebalj’s psychosis was the result of his withdrawal from drugs, a straightforward application of the proposed reform formulation would be problematic.
In particular, our intuitions flounder in respect of the subject defendant’s criminal responsibility as he was endeavouring to wean himself from drugs at the time of the offence and may for that reason be considered less blameworthy.
As noted in Chapter 3 the judgment of responsibility holds that a responsible agent is an agent who is considered to be a fit subject of our responsibility practices. A particular aspect of this practice is encompassed by the normative exercise undertaken by the criminal law in according categories of liability to the rational and autonomous conduct of individuals. Consequently, it would be in keeping with the judgment of responsibility if an accused’s criminal responsibility correlated with his or her moral culpability. In the instant case, however, as the accused’s moral culpability was reduced, given that he had attempted to wean himself off drugs, holding him fully criminally responsible would be incongruent with his moral culpability.
Nevertheless, it should not be thought that while a correct interpretation of Sebalj is problematic, this in any way undermines the validity and utility of the application of the proposed reform formulation.
The doctrinal problem which the reform proposal in Chapter 4 raises and which further research may alleviate involves the doctrinal issue of determining the precise nature of our responsibility practices when considering the criminal responsibility of an accused experiencing ‘drug-induced psychosis’.
One possible means of moving towards a resolution of this issue is to focus on the twin attractions presented by Meta-Responsibility. In particular, and in keeping with the judgment of responsibility aspect of the enquiry, given that responsibility is a historical phenomenon it could be argued that a defendant should be held responsible where an evidentiary test of relevance is satisfied. Applying such a test to the case of Sebalj