Frendak to Phenis to Breivik: An Examination of the Imposed Insanity Defense

This paper provides an overview of the insanity defence. An historical context is offered and each element of the M'Naghten Rules is discussed, highlighting differing interpretations within various jurisdictions. Discussion is offered on the role of expert evidence in addressing the 'ultimate issue' before the courts. Significant case law in relation to the insanity defence is highlighted. Psychiatrists have an important role to play in addressing issues central to the M'Naghten Rules and making these accessible and comprehensible to court and jurors in particular. Insanity is a legal construct designed to determine the extent to which a person may be deemed criminally responsible for a criminal act and is often difficult to reconcile within medical and public paradigms of mental illness and justice. Principles are offered to guide psychiatrists who are called to give evidence in cases where the mental illness defence has been raised. Show more

In many countries, there continue to be conflicting opinions and mechanisms regarding the appropriateness of treatment and/or punishment for mentally ill individuals who commit crimes. The general population is concerned with public safety and often finds it difficult to accept the possibility that a mentally ill individual who commits a crime can be hospitalized and eventually discharged, sometimes after a relatively short time. In most countries the options of incarceration and hospitalization are available in concert. In some, incarceration occurs before hospitalization. In others, hospitalization is first, followed by a prison term. An additional option could be "treatment years." The court would determine the number of years of treatment required, according to the crime. This dilemma has no unequivocal solution. The goal is to reach a balance between the right of the patient to treatment and the responsibility of the courts to ensure public safety. Show more

The criminal justice system relies on the opinions of expert witness to assist in decisions about fitness to stand trial (FST) and verdicts of not guilty by reason of mental illness (NGMI). The aim of the present study was to assess the level of agreement between experts about these legal issues using a consecutive series of serious criminal matters in New South Wales. Pairs of reports from 110 consecutive criminal matters completed by the New South Wales Office of the Director of Public Prosecutions between 2005 and 2007 were examined. The opinions of experts about FST and NGMI were recorded. Agreement about FST was fair-moderate (experts engaged by opposite sides, kappa = 0.293; experts engaged by the same side, kappa = 0.471), although there was a higher level of agreement in homicide matters. Agreement about NGMI was moderate-good (experts engaged by opposite sides, kappa = 0.508; experts engaged by the same side, kappa = 0.644) and there was a higher level of agreement when the experts also agreed about the diagnosis of schizophrenia. Further analysis using generalized estimating equations did not find a higher level of agreement about FST or NGMI in pairs of reports containing the opinion of experts from the same side. Little evidence was found for bias in expert opinions about either FST or NGMI, but the comparatively low level of agreement about FST suggests the need for reform in the way that FST is assessed. Show more