Disease of the Mind: Individual Justice and Societal Protection

Chapter 3
Disease of the Mind: Individual Justice and Societal Protection

Introduction: competing demands

The M’Naghten rules¹ require a defect of reason to arise from a disease of the mind. This chapter will consider both the meaning of the latter expression and the various factors which inform this meaning in the context of both the common law and statute. It will be argued that the expression ‘disease of the mind’ is a general term under which courts and legislatures balance three factors: clinical evidence, a judgment of responsibility and community interest.

The first factor, clinical evidence, refers to the provision of expert psychiatric and forensic psychological evidence. An aspect of such clinical evidence will involve the classification of an accused’s behaviour in terms of a diagnostic category. The classification of an accused’s behaviour allows an expert witness to provide the trier of fact with a greater understanding of what the symptoms of a particular condition are. Such an understanding will allow the trier of fact to determine whether the accused was suffering from such a condition at the time of the offence. Additionally, clinical evidence will assist the court in determining the legal issue of whether a particular condition amounts to a disease of the mind. That is, evidence of the symptoms, nature and causes of an accused’s condition will be relevant to the court in determining whether a particular condition is capable of constituting a disease of the mind. The clinical expertise with which psychiatry applies discrete diagnostic categories to individuals is an aspect of psychiatry’s therapeutic rationale. Such clinical expertise permits expert psychiatric and forensic psychological evidence to be used in diagnosing an individual’s treatability and, moreover, evaluating his or her (future) risk to others. This will be relevant to the question of such an individual’s treatment and disposition.

The second factor which is encompassed by the disease of the mind enquiry is a judgment of responsibility. The judgment of responsibility addresses the question of an agent’s moral and legal responsibility. The question of responsibility concerns whether an individual has the requisite capacities to be held morally responsible and so be potentially liable for the imposition of any sanctions thought appropriate by the law. A responsible agent is an agent who will be considered to be a fit subject of our responsibility practices.² One such responsibility practice involves the larger normative exercise undertaken by the criminal law in according categories of liability to the rational and autonomous conduct of individuals. The judgment of responsibility is important as it articulates the intuition that it is wrong to punish an individual whose mental condition precludes him or her from either knowing the nature and quality or wrongness of his or her act or who lacks the capacity to control his or her conduct.

The third factor informing the disease of the mind enquiry is community interest. Community-interest considerations encompass the societal interest in being protected from the threat of harm posed by those considered to be at risk of harming others. There is a community interest in ensuring that such individuals are properly managed and treated justly by being provided with the requisite resources and facilities. While the disease of the mind is a distinct aspect of the defence of insanity to that of the disposition of the accused, both are informed by concerns with societal protection. In particular, the community-interest aspect of the defence will be of relevance to the issue of the correct characterization of an accused’s state of mind, in addition to the question of his or her disposition. The way in which a concern with societal protection informs the disease of the mind enquiry and the disposition of a mentally impaired acquittee will be discussed below.

While there is a great deal of overlap between these factors each factor accounts for a discrete area of enquiry involving different issues and methodologies. As a result of these differing issues and methodologies, tensions and competing demands arise when these same factors are used in order to determine the disease of the mind enquiry. Consequently, an investigation of the concept of disease of the mind offers an opportunity to view the operation of several competing demands and the way in which these competing demands are treated by the criminal law. For example, clinical evidence will be of relevance in determining both the meaning of disease of the mind and whether the evidence is capable of establishing that the accused was suffering from such a disease of the mind. However, as will be argued below clinical evidence alone cannot be determinative of the enquiry. The degree to which psychiatric evidence will be allowed to inform the disease of the mind enquiry will depend on the extent to which it has an impact on the judgment of responsibility and social-defence considerations.³

Methodologically, the approach followed in this chapter begins from a similar starting point to that adopted by Nicola Lacey and Alan Norrie in the area of criminal law and philosophy.⁴ According to these theorists, the law is confronted with a series of complex claims arising from various communal, moral and professional imperatives. For these theorists, any conflicting demands arising from these imperatives represent irreconcilable contradictions. One such contradiction concerns the issue of individual justice and societal protection.⁵

According to Nicola Lacey, social practices within and around the arena of criminal justice are part of a delicately balanced equilibrium depending on ‘holding tensions at bay by exploiting logically contradictory discourses but disguising the fact by moving between different levels of, and spheres for, analysis’.⁶ While at one level contradictory, at another level such an approach represents ‘part of a complex strategy which allows the criminal law to keep various balls of different shapes and colours in the air at once’.⁷ For Lacey and Norrie, the criminal law consists of a number of contradictions which, instead of being genuinely reconciled are by means of a sleight of hand (’complex strategy’) made to seem reconciled. Any tensions arising in the law from these contradictions are socio-historical in nature and dynamic, sensitive to historical change and traceable to changes in social institutions.⁸

In contrast to the above account this chapter will argue that in the context of the defence of insanity the law does genuinely reconcile claims arising from communal, moral and professional imperatives. While there is complexity in the law as a result of the various demands arising from these imperatives, any attendant tensions have been resolved in a historically stable fashion.⁹ The precise manner in which the law negotiates such a resolution will be discussed in the final substantive section of this chapter.

The chapter will begin with an overview of the disease of the mind enquiry as understood pursuant to the M’Naghten rules¹⁰ and modern statutory enactments. This will then be followed by an account of how each of the various factors informs the disease of the mind enquiry. The first factor to be considered will be expert evidence and in particular the way in which clinical accounts of ‘mental disorder’ differ from the legal conception ‘disease of the mind’. This will then be followed by an analysis of the judgment of responsibility and the various factors which are operative in distinguishing between those internal states for which an accused will be held responsible and those for which he or she will not. The third factor which will be considered is the question of community interest. The community-interest aspect of the disease of the mind enquiry will be seen to be concerned with the issue of societal protection in the light of the likelihood that a mentally impaired individual’s state of mental impairment may recur. The analysis of this aspect of the disease of the mind enquiry will also comment on the degree to which social-defence concerns underpin the issue of the disposition of an individual found to be mentally impaired. The final substantive section will outline the way in which these three factors are reconciled by the criminal law in the context of the disease of the mind enquiry. This section will also respond to objections of both a practical and principled nature raised against the criminal law’s use of social-defence considerations in order to determine the disposition of an individual found non-responsible due to a disease of the mind. The final section will provide an overview of the analysis undertaken and conclusions reached.

While all Australian jurisdictions have statutory formulations of the defence, only some are declarative of the M’Naghten rules.¹¹ I will begin with the common-law defence of insanity before considering the various statutory formulations.

An influential statement defining disease of the mind at common law is that of King CJ in R v Radford:¹²

The expression ‘disease of the mind’ is synonymous, in my view with ‘mental illness’. The essential notion appears to be that in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called ‘defect of reason’ in the M’Naghten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli.¹³

King CJ’s comment suggests that the expression ‘disease of the mind’ is to be given the same meaning as ‘mental illness’. Equally, in Radford, it was held that the expression ‘mental disease’ is synonymous in meaning with ‘disease of the mind’.¹⁴ Consequently, at common law it is recognized that the expressions ‘disease of the mind’, ‘mental disease’ and ‘mental illness’ are synonymous. This view has been accepted by the High Court as an accurate statement of law.¹⁵ The distinction drawn by King CJ is that between a disease of the mind as ‘an underlying pathological infirmity of the mind’, on the one hand, and ‘the reaction of a healthy mind to extraordinary external stimuli’, on the other. According to this analysis a distinction may be drawn between those states of malfunction which have their source in an internal factor and those states of mental malfunction which have their source in an external factor. Where, the malfunctioning of the mind is caused by an external factor the defence of insanity is not available, and where the malfunction results in the accused’s conduct being involuntary, the matter is dealt with as one of sane automatism.

Different expressions are used amongst the various Australian jurisdictions. The expression used under the codes of Queensland and Tasmania is ‘mental disease’.¹⁶ More recent statutory expressions are to be found in the Northern Territory, South Australia and Victoria. In each of these jurisdictions the expression used is ‘mental impairment’.¹⁷ Similarly, in the Commonwealth, ACT and Western Australian codes, the requisite disorder of mind is referred to as ‘mental impairment’, which is further defined as including various mental states.¹⁸

While statutory interpretations of ‘disease of the mind’ differ amongst the various jurisdictions, two distinct approaches have been recognized by commentators.¹⁹ Some statutory formulations have sought to incorporate judicial pronouncements on the M’Naghten rules.²⁰ Other legislative enactments have sought to adopt refinements in clinical accounts of mental malfunction thereby bringing the definition of ‘disease of the mind’ more into line with those states of malfunctioning which correspond to the clinical notion of mental disorder.²¹ An example of a statute that seeks to encompass judicial developments of the concept of disease of the mind is to be found in the Commonwealth Criminal Code.²² The code defines ‘mental impairment’ as including ‘senility, intellectual disability, mental illness, brain damage, and severe personality disorder’.²³ The code further defines ‘mental illness’ as:

An underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli. However, such a condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.²⁴

In particular, the code’s definition of mental illness adopts the common-law formula derived from the judgment of King CJ in Radford.²⁵ Another statutory enactment that has sought to accommodate judicial developments of the insanity defence in its formulation is the Victorian Act. The Victorian Act, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1977 (Vic), has abrogated the McNaghten defence of insanity.²⁶ In place of the defence of insanity a new ‘Defence of Mental Impairment’ has been introduced requiring an accused to suffer from a mental impairment causing him or her to either not understand the nature and quality of his or her conduct or know that it is wrong.²⁷ While the Victorian Act employs the expression ‘mental impairment’ no definition of this is offered.²⁸ However, it has been held that the Victorian Act’s formulation is a legislative restatement of the common law.²⁹ As a result, under the Victorian Act the expression ‘mental impairment’ bears the same meaning as the expression ‘disease of the mind’ found in the common-law defence of insanity.³⁰

An example of a statutory enactment that seeks to accord with modern clinical conceptions of mental disorder is to be found in the Crimes Act 1900 of the Australian Capital Territory, which has now been superseded by the Criminal Code (ACT).³¹ The Crimes Act 1900 uses the expression ‘mental dysfunction’ for the requisite mental disorder which is defined as ‘a disturbance or defect, to a substantially disabling degree, of perceptual interpretation, comprehension, reasoning, learning, judgment, memory, motivation or emotion’.³² Simon Bronitt and Bernadette McSherry have contended that the benefit of employing a definition which is closer to the clinical conception of mental disorder is that it is ‘flexible enough to accord with changing medical conceptions of mental disorders [and] is of more guidance to clinical experts’.³³ In support of this claim it has been further argued that the common-law expression, ‘an underlying pathological infirmity of the mind’ is ‘vague’. It has been suggested that the reason for such vagueness is that in determining which states of mental dysfunction will be candidates in establishing the defence ‘courts having been traditionally influenced by policy rather than medical reasons’.³⁴ Similarly, Paul Fairall and Stanley Yeo have pointed out that it is ‘public policy considerations concerning criminal responsibility, and not clinical science, [which] determine the issue of innocence or guilt’.³⁵ Such public-policy considerations have been said to include, in particular, concerns about the breadth of the defence of insanity and the community interest in controlling and treating mentally disordered individuals.³⁶

While there is merit in the views of these authors they are partial in failing to account for all of the various aspects of, and factors informing, the disease of the mind enquiry. The first contention by Bronitt and McSherry in focusing on those states which will give rise to the relevant incapacities gives too much weight to psychiatric evidence. As a result, statutory formulations in line with clinical conceptions of mental disorder fail to focus on what may be referred to as the ‘community-interest’ aspect of the disease of the mind enquiry. The community-interest aspect of the disease of the mind enquiry will be discussed below. In contrast, the second view by Bronitt and McSherry as well as Fairall and Yeo, in focusing on public-policy issues informing the disposition of an accused fails to take adequate account of what may be referred to as the ‘responsibility’ aspect of the disease of the mind enquiry. That is, by focusing on public-policy considerations statutory formulations in line with common-law developments fail to reflect the judgment of responsibility which informs the disease of the mind enquiry. This aspect of the disease of the mind enquiry will also be discussed below.

In place of both of these partial views the remainder of this chapter will argue that the disease of the mind enquiry achieves a balance between the judgment of responsibility and the community-interest aspects of the enquiry. Moreover, it will be argued that while there is a lack of congruence between the legal conception of disease of the mind and the clinical conception of mental disorder, clinical evidence will nevertheless inform both the judgment of responsibility and community-interest aspects of the enquiry.³⁷

However before considering the way in which the law reconciles the tensions arising from the various aspects of the disease of the mind enquiry the following three sections will analyse each of these aspects in turn. The first of these sections will analyse the nature of, and purposes served by, expert evidence.

Expert evidence and disease of the mind

This section will begin with an account of the clinical conception of ‘mental disorder’. This will then be followed by an analysis of the reasons why the clinical concept ‘mental disorder’ does not accord with the legal concept ‘disease of the mind’.

Clinical accounts of mental disorder

An individual’s state of mental malfunction may be defined on various levels of abstraction, for example, syndromal pattern, dysfunction or aetiology. While each of these is an indicator of a mental malfunction none is equivalent to the concept of mental disorder itself.³⁸ Current clinical formulations of an individual’s state of mental malfunction recognize the importance of social, psychological and biological factors in the aetiologies of mental malfunction.³⁹ In so doing such formulations adopt what has been referred to as a bio-psychosocial model of mental disorder.⁴⁰ An example of such usage is to be found in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR), which defines the term ‘mental disorder’ as:

A clinically significant behavioural or psychological syndrome or pattern that occurs in an individual and that is associated with present distress (for example a painful symptom) or disability (that is, impairment in one or more important areas of functioning) or with a significantly increased risk of suffering death, pain, disability, or an important loss of freedom.⁴¹

According to the DSM-IV-TR severe conditions of mental disorder are provided with an ‘Axis I’ classification and are characterized by some form of severe psychological dysfunction.⁴² In particular, paradigmatic instances of mental disorder which are provided with an Axis I diagnostic categorization are characterized by a thought disorder such as psychosis.⁴³ For example, in the instance of the paradigmatic case of schizophrenia, the DSM-IV-TR defines the differential diagnosis of schizophrenia as including psychotic symptoms. Psychosis ‘refers to delusions, any prominent hallucinations, disorganized speech, or disorganized or catatonic behavior’.⁴⁴ According to the DSM-IV-TR, a ‘delusion’ is defined as: ‘a false belief based on incorrect inference about external reality … [in the face of] incontrovertible proof or evidence to the contrary’.⁴⁵ A ‘hallucination’ is defined as ‘a sensory perception that has the compelling sense of reality of a true perception but that occurs without external stimulation of the relevant sensory organ’.⁴⁶ Inferences about disorganized thinking are based primarily on the individual’s speech which may range from ‘loose associations’, slipping from one topic to another, to, in severe cases, disorganized ‘word salad’.⁴⁷ Catatonic symptoms however are non-specific and may occur in other mental disorders.⁴⁸

Axis I psychiatric disorders are characterized by a lack of ‘reality testing’.⁴⁹ A lack of reality testing is conventionally understood as involving ‘a pervasive inability to engage reality’.⁵⁰ A failure of reality testing may lead an individual to draw erroneous conclusions from accurately perceived objects.⁵¹ Moreover, a person experiencing a severe mental disorder is just as likely to mistake the flux of his or her own consciousness for such evidence. As a result, an individual who lacks the ability to ‘engage reality’ may come to mistake his or her own idiosyncratic interpretation of the world for an inter-subjective interpretation, or meaning, which most people share of the objective world. The failure to distinguish between an idiosyncratic and inter-subjective variety of meaning has been described as constituting a ‘fundamental want of reason’.⁵² Consequently, a lack of reality testing should not be understood as confined only to the misinterpretation of reality caused by psychotic symptoms. A lack of reality testing, or the inability to engage reality, will also include failures of ‘public agreement’ arising from a lack of a shared understanding of the world:

It is not reality in the sense of some objective standard of truth which fails to be acknowledged; it is rather reality in the sense of the features which are shared between other thinkers and perceivers – the aspects on the basis of which there is public agreement in judgement.⁵³

The criterion for rationality relates knowledge not to the content of an individual’s beliefs but rather to cognitive processes. It is the way a belief or consideration is formed and held, not its truth or falsity, which will determine its rationality. The beliefs upon which an individual acts are justified if they are the product of correct cognitive processes.⁵⁴ Major disorders of thought processes involve disturbances in three areas: cognitive focus, reasoning and concept formation.⁵⁵ Cognitive focus is the failure to effectively select relevant aspects of a stimuli field or to adjust attention in response to changing situations.⁵⁶ Disturbed reasoning involves over-generalized thinking, the drawing of conclusions without evidence and combinative thinking, an inappropriate condensation of impressions and ideas into beliefs and conclusions.⁵⁷ Concept formation disturbance involves a failure to distinguish between false and veridical perceptual experiences and beliefs.⁵⁸ Concept formation disturbance involves ‘over-inclusiveness’: ‘the inability to conserve conceptual boundaries with the result that there is an incorporation of irrelevant ideas’.⁵⁹ Consequently, an individual’s inability to engage reality denotes a cognitive failure which includes, in addition to purely perceptual errors, major disorders of thought processes leading to faulty reasoning and judgment. Such cognitive failure will result in thought processes which will generate irrelevant beliefs or considerations.

Conditions that are characterized by significant disturbances of psychological functioning are diagnostically distinguished from those conditions that involve a personality disorder.⁶⁰ While personality disorders, such as ‘antisocial personality disorder’ are clinically recognized mental disorders, they do not involve a lack of reality testing and are accorded an ‘Axis II’ classification by the DSM-IV-TR.⁶¹ When a condition is categorized as an Axis II personality disorder, the relevant condition is said to involve an enduring pattern of feeling, thinking and behaving that is relatively stable over time and which does not occur exclusively during an episode of an Axis I disorder.⁶² The diagnosis of an Axis II classification is based on an evaluation, relative to socially conditioned expectations, of such an individual’s enduring pattern of feeling, thinking and behaving.

Some commentators have remarked on the failure of the legal concept ‘disease of the mind’ to accord with the clinical concept ‘mental disorder’.⁶³ The reason why the clinical conception of mental disorder does not accord with legal usage will be the subject of the next section.

Psychiatric conception and legal usage

Lord Devlin remarked on the relationship between medical opinion and the question of whether a condition is a disease of the mind by holding:

There is no general medical opinion upon what category of diseases are properly to be called diseases of the mind. Doctors’ personal views, of course, are not binding upon me. I have to interpret the rules according to the ordinary principles of interpretation, but I derive help from their interpretations inasmuch as they illustrate the nature of the disease and the matters which from the medical point of view have to be considered in determining whether or not it is a disease of the mind.⁶⁴

Several points may be made in the light of this remark. First, there is no medically recognized diagnostic category that amounts to a disease of the mind. Second, expert evidence is not determinative of the enquiry whether there is a disease of the mind. However, clinical evidence will assist by revealing the various effects of the condition. This evidence will be ‘highly relevant to the judicial determination of whether such a condition is capable of constituting a “disease of the mind”’.⁶⁵ Where a condition is characterized as a disease of the mind, clinical evidence as to the symptoms, nature and causes of an accused’s condition will also be of assistance to the fact finder in determining the ultimate issue of whether the accused was in fact affected by the particular mental condition. That is, by outlining the precise manifestations of particular types of mental malfunctioning expert evidence will assist the trier of fact in determining the question of whether the behaviour of the accused was attributable to such malfunctioning. Additionally, clinical evidence will assist courts in determining the likelihood of an individual’s mental illness recurring in order to establish whether or not he or she should be released. That is, clinical evidence will assist the court in determining the question of an accused’s disposition subsequent to a finding of mental impairment.⁶⁶ The issue of the likelihood of an individual’s mental illness recurring, and the relationship between mental illness and violent behaviour, will be considered in greater detail below.

The characterization of a given mental state as a mental disorder is not a necessary condition for its recognition as a disease of the mind. For example, cases of epilepsy have not been recognized as instances of mental disorder. Nevertheless, such cases have, on occasion, been held to give rise to the defence of insanity.⁶⁷ Equally, the fact that a particular mental condition is recognized as a mental disorder will not be sufficient to ensure that it is characterized as an instance of a disease of the mind. For example, while the status of Axis II disorders is distinguished clinically from Axis I disorders for diagnostic purposes, they are nevertheless still recognized as instances of mental disorder. However, the various Australian jurisdictions differ in their characterization of Axis II disorders for the purposes of the insanity defence. While at common law it is well recognized that a personality disorder such as antisocial personality disorder will not be sufficient to ground a defence of insanity,⁶⁸ both the Criminal Code (Cth) and the Criminal Code (ACT) recognize severe personality disorder as mental impairment for the purposes of the defence of mental impairment.⁶⁹

The differences between the two conceptions, the legal and the clinical, are explicable not only in terms of the terminology used, but also in terms of a further and deeper conceptual divide between the law and psychiatry.⁷⁰ The nature of this divide may be understood by considering the purposes served by both psychiatry and law. The difference in the purposes served by these two disciplines is apparent from the reasons provided by the Victorian Law Reform Commission in its decision against providing a revised definition of the expression ‘mental impairment’ in the Victorian Crimes (Mental Impairment and Unfitness to be Tried) Act.⁷¹

As previously noted, while the Victorian Act does not define ‘mental impairment’ it has been judicially recognized as a legislative re-statement of the common law.⁷² During the course of the VLRC’s review of Defences to Homicide, submissions were received calling for a revised definition of ‘mental impairment’ to be implemented in line with medical understandings.⁷³ However, the commission in its final report decided to leave the expression ‘mental impairment’ undefined. Two reasons were considered persuasive by the commission in reaching this decision.

First, the use of diagnostic criteria was considered to be an inappropriate basis for defining the legal expression ‘mental impairment’.⁷⁴ In regards to the use of diagnostic criteria, the commission observed that the DSM-IV-TR explicitly disavows the use of its diagnostic classifications in a legal context.⁷⁵ Further, the commission remarked on the mutability of medical knowledge in respect of the extant varieties of mental malfunctioning. The commission correctly observed that such mutability would be a problematic basis for legal decision-making in the context of the criminal law. As has been noted above, the criminal law is dependent on expert evidence in order to assist in the correct characterization of an accused’s state of mental disorder and consequent responsibility. However, where such expert evidence is in a state of flux and forms the basis for legal decision-making, there is a possibility that reliance on such evidence will lead to inconsistent results.⁷⁶ Yet, given the onerous nature of both criminal sanctions and the dispositional regime attendant upon a finding of insanity, certainty in the law must be established. It is incumbent on the criminal law to ensure that a consistent set of rules determine when people are and are not criminally responsible.

The second reason provided by the commission for deciding to leave the expression ‘mental impairment’ undefined was the view that ‘the lack of formal definition provides the defence with considerable flexibility’.⁷⁷ The commission believed that by defining the expression the defence could be restricted unnecessarily.⁷⁸

It was noted above that the clinical account of severe mental disorder is focused on an individual’s failure of reality testing as characterized by cognitive failure. Such cognitive failure includes both purely perceptual errors in addition to major disorders of thought processes resulting in faulty reasoning and judgment. In contrast the legal conception ‘disease of the mind’ includes ‘any illness, disorder or abnormal condition which impairs the human mind and its functioning’.⁷⁹ The purpose of the legal expression, ‘disease of the mind’ is to determine, pursuant to a test of moral responsibility, who is a fit subject of our responsibility practices rather than who is suffering from a recognized mental disorder.⁸⁰ As a medical discipline, and in keeping with its therapeutic rationale, psychiatry is concerned with the allocation of psychiatric disorders to diagnostic categories in order to facilitate treatment. Hence, for the purposes of forensic psychiatry, the cause of an individual’s behaviour is the subject of categorization and treatment. In contrast, the defence of insanity is not a medical diagnosis but a legal excuse. In particular, the defence of insanity exempts an individual from criminal responsibility.⁸¹ While expert evidence may indicate whether an individual is suffering from a mental disorder, such evidence will not be determinative of the legal enquiry, namely, whether he or she should be exempted from criminal responsibility. The issue is whether the accused’s mental faculties were impaired by ‘disease, disorder or disturbance’ not whether he or she was suffering from a recognized mental disorder.⁸²