LEGAL ISSUES IN PSYCHIATRY

(1) Pre-Trial Issues

(2) Fitness to Plead

(3) Trial Issues - Intent

- Psychiatric Defences’ 1 - Automatism

2 - Insanity

3 Diminished Responsibility

- Infanticide

(4) Sentencing

Issues - Mitigation

- Medical Disposals

(1) PRE-TRIAL STAGE

This is from appearance in Magistrates Court (where all criminal proceedings begin) up to consideration of fitness to plead.

Issues considered will be those specific to the pre-trial stage plus trial and disposal issues (where appropriate).

Referrals:

(1) Court remands on bail for psychiatric reports, either as outpatient or inpatient (for example with condition of residence on ward).

(2) Court remands in custody for psychiatric report (therefore seen in prison).

(3) Remanded to hospital for assessment under Section 35 of the Mental Health Act 1983 (will have had a ‘preliminary report’ in advance for the order to he possible).

(4) Remand to hospital for treatment under Section 36 of the Mental Health Act 1983 (‘preliminary report’ beforehand, as above).

(5) Referral by defence solicitor whilst on remand or on bail.

(6) Referral from probation officer whilst on bail or in custody.

(7) Referral from the Crown Prosecution Service.

(8) ‘Automatic’ reports, for example in murder and arson cases.

(2) FITNESS TO PLEAD

N.B. Mental capacity in the law is ‘action specific’, hence a person is potentially capable of X but not of Y, ‘fitness to plead is a specific capacity.

Specific rules for fitness to plead are related to the trial Process.

Rules determined by Section 4 of the Criminal Procedure (Insanity) Act 1964 (see also R V Pritchard);

defendant should be able to:

(1) Understand the charge and significance of plea, therefore “enter a plea”.

(2) Instruct counsel “so as to make a proper defence”; not necessarily precluded by delusions, even where specifically related to the charge, not precluded by amnesia, not precluded by muteness (if ‘of malice’).

(3) Challenge jurors.

(4) Follow the course of the trial.

o Unfitness can be raised by the defence, prosecution or judge.

o Subject to an ‘enquiry’ by jury, not a ‘trial’, psychiatrist gives oral evidence.

o Effect of unfitness to plead is determined by Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. An order for detention under Sections 37 and 41 of the Mental Health Act 1983 can be made (must be made for murder) but other disposals are possible.

o Remains in hospital if on 5-37 until fit to stand trial or until discharged; no trial of the offence charged until fit.

(3) TRIAL STAGE ISSUES

Guilt of crime requires: Actus reus plus mens rea.

Each crime defines a specific mens rea. Generally mens rea amounts to ‘intent’.

‘Intent’ is not a psychiatric concept. However, an abnormal Mental State can influence the capacity to form intent or the qualitative nature of actual intent.

Intent

A psychiatrist may give evidence as to the capacity to form intent but not as to the fact of intent.

The issue arises most commonly in relation to substance ingestion.

If ingestion is voluntary then only lack of capacity to form ‘specific intent’ is sufficient to achieve acquittal.

If ingestion is involuntary then the lack of capacity to form (non-specific) ‘intent’ is sufficient.

N.B. Alcohol blackout does not amount to lack of intention per se, because it is an amnesic syndrome.

There is an overlap between lack of intent and ‘automatism’ (see below).

Automatism

Distinguish:

(I) Medical automatism (usually ictal or pen-ictal, ? fugue states).

(2) Legal automatism (essentially, impaired consciousness).

Hence all medical automatisms are legal ones but not all legal autornatisms are medical ones.

Conditions allowed as legal automatisms:

(1) Hypoglycaemia

(2) Epilepsy

(3) Somnambulism

(4) Night terror

(5) Hysterical dissociation

(6) Post head injury concussion

(8) Hypnotic trance

Distinguish between:

(1) ‘Sane’ automatism (resulting in acquitta1),

(2) ‘Insane’ automatism (resulting in direction to hosita1 under the Criminal Procedure (Insanity) Act 1964).

‘Sane versus insane’ automatism is determined by the cause of the automatism. Where the cause satisfies the McNaughten rules also then it amounts to insanity (see definition below).

Insanity Gives rise to verdict of ‘not guilty by reason of insanity’.

defect of reason from a disease of the mind such that he/she did not know the nature or the quality of the act or that it was wrong.

o Essentially = ‘cognitive.

o Medico-legal issues centre on definition of ‘disease of the mind’ (not a medical concept); case law authorities imply:

‘mind’ = mental faculties of reasoning, memory and understanding.

‘disease’ = organic or functional

= permanent or temporary

= treatable or not treatable ~f = ‘internal’ (R v Ouick)

= “manifests itself in violence and is prone to recur (Bratty)

Since R v Sullivan epilepsy is a legal ‘disease of the mind’ (probably also hysterical fugue states). Insanity now most often related to automatism cases.

o Suggest care during sentence (where report will go in Home Office File).

Medical Disposals

N.B. Psychiatric diagnosis does not imply (automatically) a psychiatric disposal e.g. defendant with psychopathic disorder which is not treatable (within the terms of the Mental Health Act 1983) or where psychiatric diagnosis does not satisfy Section I of the Mental Health Act 1983.

General points:

o Disposal must be ‘practical’, i.e.

(A) Within the Courts’ powers.

(B) Available clinically.

o Must be argued cogently (not merely telling the Court what to do).

o A link between actus reus and mental state is not necessary for medical disposal. Inpatient Disposals:

(1) Section 37 Hospital Order: grounds for detention of mental illness, mental impairment, severe mental impairment or psychopathic disorder, in the interests of the health or safety of the patient or for the protection of others: medical recommendations by two doctors. No social work application (because order made by Court). No right of appeal to MHRT in first 6 months.

(2) Section 41 Restriction Order: criterion is “necessary to protect the public from serious harm”; need oral evidence of a psychiatrist before it is made. Gives Home Office power over clinical management and discharge of the patients. May be made for limited period or (much more often) “without limit of time”.

(3) Section 38 Interim Hospital Order: not the final disposal but similar terms to Section 37. Can be made for not more than 12 weeks with renewal every 28 days up to a maximum of 6 months.

(4) Probation Order with a Condition of Psychiatric Treatment patient is still informal but if does not co-operate with treatment then can be “breached” by the probation officer on information from the psychiatrist.

Outpatient Disposals:

(1) Probation Order with/without Condition of Psychiatric Treatment.

Motivation is all important, not appropriate to compel a very unmotivated patient through a condition of psychiatric treatment attached to a probation order. Often useful where there is ‘marginal motivation’.

Probation orders are made under the Powers of the Criminal Courts Act.