Every day convicted murderers, rapists, and other violent offenders are released by the prisons into the community. Most have not even completed their sentences, as they earned remittances for good behaviour. No one seems to worry that statistically many of these former prisoners remain dangerous, and will probably harm others sometime in the future. 1 In fact, there are criminologists who argue persuasively that fewer offenders should be imprisoned, for the good of their families and communities. This may reflect the confusion about what the actual purpose of imprisonment is, ranging from urges for retribution to achieving rehabilitation. Nevertheless, we are satisfied that when an offender ‘has repaid his debt to society’ he is free to re-enter ordinary life, albeit for a while under the sometimes wavering, watchful supervision of a parole officer

Kaliski, S Z

Cape Town University OpenUCT

FORENSIC FORUM |  http://dx.doi.org/10.4314/ajpsy.v15i2.11 Afr J Psychiatry 2012;15:83-87African Journal of Psychiatry • March 2012 83Every day convicted murderers, rapists, and other violentoffenders are released by the prisons into the community.Most have not even completed their sentences, as theyearned remittances for good behaviour. No one seems toworry that statistically many of these former prisoners remaindangerous, and will probably harm others sometime in thefuture.1 In fact, there are criminologists who arguepersuasively that fewer offenders should be imprisoned, forthe good of their families and communities. This may reflectthe confusion about what the actual purpose of imprisonmentis, ranging from urges for retribution to achievingrehabilitation. Nevertheless, we are satisfied that when anoffender ‘has repaid his debt to society’ he is free to re-enterordinary life, albeit for a while under the sometimes wavering,watchful supervision of a parole officer. In contrast, as directed by sections 77 and 78 of theCriminal Procedure Act, if an accused by reason of ‘mentalillness or mental defect’ (which is not defined) is unable tounderstand court proceedings, or to have committed (oromitted) an act during which he/she was incapable ofappreciating the wrongfulness of the act, or of acting inaccordance with such an appreciation the court will generallycertify the accused as a ‘state patient’a1, who will then beadmitted to a designated psychiatric hospital for an indefiniteperiod. Discharge can only be granted by a judge inchambers, who usually endorses the conditionsrecommended by the treating clinicians, for a designatedperiod. Unlike in usual court proceedings, where an accused canonly be found guilty if his guilt is proven ‘beyond reasonabledoubt’, the mentally ill offender will be certified if ‘it can beproved on a balance of probabilities that, on the limitedevidence available the accused committed the act inquestion’ (section 77(6)). This has been a recent addition tothe process, as previously such an accused would be foundnot guilty by reason of insanity but committed to a psychiatrichospital. It is not clear whether nowadays this rudimentarydetermination of guilt still results in a ‘not guilty’ finding, or ifit is a weaker version of a ‘guilty but insane’ verdict. But theuse of a balance of probabilities using limited evidence doesnot prima facie seem like a fair carriage of justice.Nevertheless, the mentally ill offender, whose guilt hasbeen determined by a less stringent test, finds themselvescommitted almost forever, while their ‘normal’ counterpart,may serve only half their sentence. This is particularly gallingwhen the state patient has to deal with the early release oftheir co-accused while they look forward to a seeminglyendless detention. Commonly state patients are alsoaggrieved that they are detained despite not being foundguilty. This has the effect that it usually is not possible toconfront them with their offences as they point out, correctly,that they were not really found guilty. The most surprising aspect of this practice is the lack ofoutrage at what seems, on the face of it, to be an abuse ofhuman rights.The Problem of DefinitionsMany surveys of legal systems in European, Australasian andNorth American countries have confirmed that there is aconfusing profusion of legal terms that loosely correspond tothe colloquially named concept of ‘insanity’. These differencesare found even between regions within these countries.2,3Worse still, no legislation actually defines ‘mental illness’, orgives any indication which psychiatric disorders would qualifyfor the legal definition. For example, Austria allows for a‘profound impairment of consciousness’, Denmark a ‘stateequal to mental illness’, Finland a ‘state of lunacy’ and so on.3Every country would allow psychosis, especially if due toschizophrenia, to be used as a valid insanity defence. Butsome allow addiction, neuroses, and personality disorders too.Our law suffers the same impediments, and to compoundthe problem adds ‘mental defect’ as an additional criterion.The courts have accepted that the definitions of ‘mentalillness’ and ‘mental defect’ can be entrusted to the experts,who must assess and provide an opinion on the accused,which is a quaint notion to use in an adversarial system. In ourlaw the insanity defence is encapsulated within the legalconstruct of ‘pathological incapacity’, which implies that suchan accused suffers from a discernable brain disorder that canbe directly determined, and which is amenable to someDoes the Insanity Defence lead to anAbuse of Human Rights?S Kaliski Forensic Mental Health Services, Western Cape & Department of Psychiatry, University of Cape Town, Cape Town, South AfricaCorrespondence:Prof. S Kaliskiemail: Sean.Kaliski@uct.ac.zaa1An interesting aside: in the Mental Health Care Act those suffering frompsychiatric disorders are called ‘mental health care users’, but thosecertified for committing an offence are called ‘state patients’. Somehowinsanity miraculously allows us to medicalise mental disorders.FORENSIC FORUM |  http://dx.doi.org/10.4314/ajpsy.v15i2.11 Afr J Psychiatry 2012;15:83-87African Journal of Psychiatry • March 2012 85treatment.4 Is there a difference between ‘illness’ and‘defect’? Psychiatrists seem informally to have agreed thatthe former refers to psychotic or severe mood disorders,whereas the latter includes any disorder characterised bycognitive impairment. Clinically ‘defect’ and ‘illness’ aregenerally considered to be synonymous. But it is worryingthat the law insists on the distinction, as cognitiveimpairment has a complicated and often reciprocalassociation with many serious psychiatric disorders.This would all be well if psychiatric diagnoses werereliable and valid. But they are not. Each edition of DSMchanges criteria, adds new disorders, or discards wellused ones.5 Some of these changes have profoundimplications, for example there is now a proposal thatearly dementia-like symptoms be encapsulated into a newcategory called ‘minor cognitive impairment’. This meansthat this diagnosis, which previously was not available tocommit an accused, may potentially be used to createanother group of state patients. Worse still, it is well knownthat even using the universally well tried DSM diagnosespsychiatrists will only achieve consensus on a diagnosis inabout 75-80% of the time, and then simultaneously willproduce lists of other co-morbid and differentialdiagnoses.6,7 Sometimes, this does result in the unedifyingspectacle of experts offering diametrically opposingassessments in court (using the same clinical information),much to the confusion and bemusement of our learnedlaw colleagues. So, fairness in the use of the insanitydefence already stumbles at another hurdle.Can psychiatrists really assist in determiningcriminal responsibility?Are people with severe mental illness really not able toappreciate wrongfulness, or control themselves? From thelegal perspective the more serious the offence the moreimportant it becomes that the court consider theoffender’s ability to form intent (mens rea). The Lawassumes that every accused has the capacity to formintent (criminal responsibility), but will allow a defence ofmental illness to negate this.4 Actually in a local study wefound that so-called normal defendants seem to be asignorant about the meaning of wrongfulness, were as likelyto report that they could not control themselves (usually asthey were angry), and were as clueless about courtprocedures as their mentally ill counterparts.8 Despitesome tantalising findings that seem to show thatpsychopathy and damage to some regions of the brain areassociated with problems in moral reasoningneuroscientists are still not able to demonstrate thatmentally ill individuals are less responsible for theiractions than unaffected people.9Yet most psychiatrists would insist that the presence ofpsychotic symptoms (or cognitive deficits) during anoffence is enough to qualify for a successful insanitydefence. Unfortunately the courts generally accept theexpert’s opinion, where instead they ought to be decidingon this ultimate issue. My anecdotal experience is thatalmost all psychotic defendants can appreciatewrongfulness, and are able to control themselves. It’s justthat their motivations are crazy, and therefore deemedexcusable. Is indefinite hospitalization a just disposal?The rationale for certifying state patients seems to be basedon two concerns. Firstly, it is not possible to predict how longit will take to stabilise any psychiatric disorder, or whetherthere will be a response at all. Therefore it seemsreasonable not to specify the period a mentally ill personought to receive treatment. Secondly there is always anxietythat people with mental illness are dangerous, and should bedischarged back into the community with extreme caution.Not surprisingly, when someone with a serious mentalillness commits an offence both of the above issues seem tocoalesce to support the belief that a state patient shouldremain certified until he or she is ‘cured’ and no longerdangerous. Superficially it would seem that evidence fromresearch justifies this, as it is now generally accepted thatpsychosis is associated with a slighter greater risk forviolent behaviour, and of course it is a truism that manypeople with psychotic disorders do not respond completelyto treatment. But these are particularly specious arguments.As a starter the United Nations new Convention on theRights of Persons with Disabilities specifies that ‘theexistence of a disability shall in no case justify a deprivationof liberty’, and continues to assert that unlawful detentionwould include those cases where the assessment of mentalor intellectual disability are combined with ‘other elementssuch as dangerousness, or care and treatment’.1 The UNHigh Commissioner for Human Rights has therefore urgedthat the insanity defence be abolished as practicedgenerally. This may just be a political victory for the anti-psychiatry lobby, but it should give us pause to considerwhether there is justification for certifying state patients forindefinite periods.For the past two decades long stay beds in psychiatrichospitals have been reduced drastically to deinstitutionalizechronic psychiatric patients. The underlying assumption isthat people with serious mental illness are better served byliving and being treated in the community. In contrastforensic mental health units have been expanding steadilyover the corresponding period. Currently in the WesternCape, South Africa, the forensic mental health serviceoccupies at least 8 wards in two hospitals, and will probablycontinue to expand. The curious irony is that the acutesystem is now overwhelmed by admissions of severelypsychotic people, most of whom are admitted because ofdisruptive and aggressive behaviour, who are not supposedto remain in hospital for longer than 2 months (and oftenhave to be discharged prematurely to create space for moreadmissions), whereas the forensic system contains statepatients who are generally clinically stable (and thoroughlyinstitutionalized) but deemed too risky to be dischargedeasily. Add to this the ever increasing influence of theRecovery Model that rightly emphasises that, given ourinability to achieve idealised treatment endpoints in mentalhealth, we should strive to optimise our patients’ lives withinthe confines of their disabilities. So, already we have bothideological and practical reasons to limit the periods thatpatients spend in hospital and accept the limits of theircapacities.The second concern that indefinite certification at leastaddresses the risk of future violence strikes at the heart ofthe largely failed enterprise of risk assessment. Since theFORENSIC FORUM |  http://dx.doi.org/10.4314/ajpsy.v15i2.11 Afr J Psychiatry 2012;15:83-87African Journal of Psychiatry • March 2012 87early 1990’s there has been a profusion of research intoproducing actuarial tools that could assign measures of riskthat patients will engage in aggressive or violent behaviour.Despite the injection of bucket loads of research funding intothis enterprise two major deficiencies persist; regardless ofthe tool or scale used the highest accuracy that any canpossibly provide is actually about 75% , and all predictionsare only valid in the short to medium term.10,11 Thereforethere is no objective method that can ascertain whether it willever be safe to discharge a state patient into the community,with the assurance that he will not act aggressively for yearsor decades henceforth. Again, the state patient can now shifthis gaze from his ‘normal’ co-accused who wins an earlyrelease from prison to the severely mentally ill patients (manyof whom are more violent than he) who enjoy relatively briefsojourns in acute psychiatric facilities.Why is discharge so difficult to achieve?A judge-in-chambers will generally grant a discharge if thestate patient’s mental state is stable (if not ‘normal’), and ifthere are assurances that he will not abuse substances, willattend a clinic, be compliant with treatment, and will besupervised by an identified family member for a designatedperiod. Most state patients derive from deprivedcircumstances, live in areas that have poor resources, andoften can only be placed with the very people against whomtheir index offence was committed. Many community facilitiesare reluctant to provide accommodation and supervision forpeople who have been doubly stigmatised by mental illnessand criminality. In the Western Cape only a handful of statepatients really fulfil the requirements for discharge. The process for discharge is unwieldy. Applications(supported by clinical reports) have to be lodged with theRegistrar of the High Court, who then forwards this to theDirector of Public Prosecutions (DPP) for a report andrecommendation. The DPP then requests reports from thetreating clinicians (that can include all members of themultidisciplinary team). These are then forwarded to a judgein chambers. The system is inefficient, and to date we stillawait decisions from applications submitted eons ago.ProposalsIt is unrealistic to expect our legal system to overhaul theinsanity defence completely. But several modifications couldbe debated and implemented:1. The finding under section 78 of the Criminal ProcedureAct should be changed to a ‘guilty but insane’ verdict.This will enable the court to issue an order that couldinitially limit the period that a state patient would remaincertified. The court could either impose mandatoryperiods, which could compare to those that may havebeen imposed for a comparable conviction, or everystate patient could be certified for an initial period, forexample, 2 years.2. At the end of the court ordered period of certification thestate patient would automatically be discharged (as aprisoner would be released at the end of a sentence),unless the treating clinicians motivate for a furtherdesignated period of certification.3. If an accused is only certified, under section 77 of theCriminal Procedure Act, in other words is unfit to standtrial, then the court should set a date when the accusedwill be returned to court for continuation of the trial, unlessthe treating clinicians provide a report that the statepatient remains unfit to stand trial.4. The discharge of forensic patients ought to be simplified.It may be more appropriate that discharge applications besubmitted to the Mental Health Review Boards thatperhaps, anyway, should have more responsibilities in thecare and administration of forensic patients. ConclusionThe application of the insanity defence has resulted in aburgeoning population of institutionalised patients, whosecare and rehabilitation increasingly is at odds with theprevailing philosophies of mental health care. I am notproposing wholesale changes to the Law, but have suggestedthat important modifications be considered. The advantagesof these changes would include being able to dealtherapeutically with state patients, in that they would probablybe more willing to deal with the implications of their offences,psychiatric impairments, and be able to foresee their ownreintegration into the community. But most important of all, wewould be able to offer them a very precious therapeuticcommodity called hope.References1. Bartlett P. The United Nations Convention on the Rights of Personswith Disabilities and the future if mental health law. Psychiatry 2009;8(12):496-498.2. Dressing H, Salize HJ, Gordon H. Legal frameworks and keyconcepts regulating diversion and treatment of mentally disorderedoffenders in European Union member states. European Psychiatry2007; 22:427-432.3. Hopper S, McSherry B. The Insanity Defence and internationalhuman rights obligations. Psychiatry Psychology and Law 2001;8(2):161-173.4. Louw R. Principles of criminal law: Pathological and non-pathological incapacity. In: Kaliski SZ, editor. PsycholegalAssessment in South Africa. Cape Town: Oxford University Press,2006: 34-57.5. Jablensky A. Boundaries of mental disorders. Curr Opin Psychiatry2005; 18:653-658.6. Fogelson DL, Nuechterlein KH, Asarnow RF, Subotnik KL, Talovic SA.Interrater reliability of the Structured Clinical Interview for DSM-III-R, Axis II: schizophrenia spectrum and affective spectrum disorders.Psychiatry Res 1991; 39(1):55-63.7. Bernstein C. Meta-structure in DSM-5 process. Psychiatric News2011; 46(5):7-29.8. Williams F, Borcherds M, Kaliski SZ. Survey of the understandingand expectations of patients referred for observation. Med Law1997; 16:41-47.9. Aharoni E, Funk C, Sinnott-Armstrong W, Gazzaniga M. Canneurological evidence help courts assess criminal responsibility?Lessons from Law and Neuroscience. Ann N Y Acad Sci 2008;1124:145-160.10. Yang M, Wong SCP, Coid J. The efficacy of violence prediction: Ameta-analytic comparison of nine risk assessment tools.Psychological Bulletin 2010; 136(5):740-767.11. Mossman D. Commentary: Assessing the risk of violence - Are"accurate" predictions useful? Journal of the American Academy ofPsychiatry and the Law 2000; 28(3):272-281.

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Does the Insanity Defence lead to an Abuse of Human Rights?

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Does the Insanity Defence lead to an Abuse of Human Rights?

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