Q&A

Now, let me use an example to make the point. Suppose you have a client charged with, let’s say, robbery, but not a particularly serious example of that offense. It might be the case were that person to be convicted of the charge, then they would face a term of imprisonment in the order of perhaps two, three or four years, depending on the circumstances and the history and the like.

Now, under our system, alternatively, if a person were to be found not guilty because of mental impairment, then the judge would be required to declare them liable for supervision under the relevant legislation and under that legislation, they would go into a psychiatric facility and they would then be managed and ultimately transitioned back to the community once they’d been treated, once they’d been treated and settled and they were thought no longer to be a danger to the community. But that process might take a very long time, and depending on the person’s condition, it might take many years.

And so it’s very possible that a person who might be looking at a sentence in the order of two or three-four years in the mainstream system might be looking at a period of a decade or more in the psychiatric system and subject to having their liberty deprived. Now that calculation changes, if we are dealing with a more serious offense, more serious offender. If dealt with in the mainstream system, a person who commits a very serious offense and convicted of that offense will be kept in jail for a very long time. Now, if that person suffers from a mental illness, that time in custody will be very difficult for that person.

Whereas if they were to have been found not guilty by reason of mental impairment and declared liable for supervision to go into the psychiatric system, they’ll be treated for their illness. So the answer to the question as to when to raise the defense of insanity or when to raise the defense of mental impairment, in my view, it’s very much driven by an assessment of the seriousness of the offense and the offender.

There are some mental disorders which may be missed during an assessment for the insanity defense. In particular, this includes paranoid, delusional beliefs which have arisen on the background of a paranoid personality disorder. And sometimes the boundary between the personality disorder and the development of delusions is very difficult to determine. What this relies on, then, is a longitudinal assessment of the person’s character and their beliefs to determine whether there has been a shift in the beliefs so that they enter the realm of the delusional. The other situation, which may be difficult to detect, is that of psychotic depression, that is depression, in which a person’s beliefs are not simply depressive cognitions, but have entered the realm of the delusional.

In practice, these people are usually severely impaired in functioning, and the delusions coexist alongside a range of other functional impairments, which are clearly part of a depressive syndrome.

Some people with a mild intellectual disability may qualify for a mental impairment or insanity defense, but it may be difficult to determine that they in fact have a disability without formal cognitive testing. In practice, outside of delusional beliefs, intellectual disability, there are very few other disorders which will qualify for an insanity or mental impairment defense.

Now, the judge will, of course, assess expert evidence in the ordinary way, bearing in mind that, and this is important, it is for an accused to establish that there was impaired mental functioning at the time of the offending or at the time of sentence. And of course, if they are able to establish that, it has a mitigating effect, it has the effect of reducing sentence. They therefore i.e. the offender therefore bears an onus to establish on the balance of probabilities that they did have that impaired mental functioning and that it affected them in the relevant way.

It is for the judge to assess whether the offender has discharged that burden and in that light, the judge will assess the expert evidence, and of course, if there’s expert evidence, which conflicts, then the judge will look at things such as the qualifications and experience of the experts involved. He or she will look at the demeanour of the evidence given by the experts. Are they confident? Are they tentative? Are they overconfident? Are they over defensive? Are they prepared to make appropriate concessions? Things of that nature.

But most importantly, I think and this is perhaps the most important consideration to bear in mind- the judge will look at whether the facts and information on which the opinion is based, is reliable and is credible to use. But one example if the expert’s opinion is based wholly on what they are told by the offender, then there may be some room for skepticism. There may be some room for the need to find other support so that the facts on which the opinion is based are found to be soundly based.

Talking about the changes required within the system. Firstly, I would like to emphasize the need to have more experts. We know that at the moment we have a dearth of forensic psychiatry experts in the country. Secondly, it would be the provision of legal documents like an FIR, charge sheet, post-mortem report in case of homicide. Thirdly, the need for a timely referral and fourth would be the provision or availability of family members at the time of assessment. We know family members are important informants and they need to be providing reliable and accurate information at the time of assessment.

All these things are extremely important to reconstruct the scenario, which had happened at the time of the alleged crime, and hence to assess the mental state of the accused at the time of the crime.

Some have argued that the defense of mental impairment is too focused upon cognitive abilities, and that instead people should also incorporate a volitional limb to the test. In practice, it is very challenging to determine who was not able to constrain their impulses or who simply chose not to. In practice, such volitional limbs privilege people who are angry, violent and consider it appropriate to use violence as a means to resolve problems. In particular, the volitional limb may be relied upon by angry men engaged in crimes against women- domestic crimes, violent crimes within marriages or relationships.

The volitional limb from the point of view of a mental health expert is a rather philosophical exercise and, in my opinion, is too difficult to implement safely and effectively without inconsistency between expert witnesses applying the limbs of the test.

So many times the question posed to a forensic expert is whether the accused has mental illness or not. And if he does, then what is the degree or percentage of mental illness? Now it is important to understand that the degree or percentage of mental illness are generally used for certification purposes for disability benefits and do not have much role in insanity defense. Instead, the right questions need to be posed i.e., if the individual has mental illness, did this illness impact his reasoning? Did he lose the capacity to know the nature of the crime or that it is wrong or contrary to law? Therefore, the right set of questions need to be asked in case of insanity defense assessments.