People with mental illness are arrested and sent to prison in disproportionate numbers,[5] often due to a lack of awareness and resources to deal with them. Police often arrest these people for minor offenses such as walking or hiking as a preventive measure of public order. [5] According to one study, 12% of adult psychiatric patients treated in the San Diego County health care system had previously been incarcerated, while 28% of Connecticut residents treated for schizophrenia and bipolar disorder had been arrested or incarcerated. Other theories, such as communicative theories (e.g. Duff 2001), share the view that criminal responsibility should be modelled on moral responsibility. This can be compared to consequentialist theories such as the general theory of deterrence, which states that a person should be considered criminally responsible if it helps reduce the number of crimes committed. The concept of criminal responsibility here does not derive from beliefs about moral responsibility, but from other ethical considerations. Proponents of the general theory of deterrence, however, generally argue that the criminal attributions of this theory would be close to those of a theory of retaliation (e.g., Clark, 1997; Hart, 2008; Rawls, 1955). Footnote 2 The same trend usually mirrors other consequentialist theories of punishment: if only for pragmatic reasons, they allow for the inclusion of a variant of the basic idea that only those guilty of a crime should be criminally punished. This means that consequentialist theories also support a variant of the insane defense. Most countries allow people with mental disorders to receive involuntary psychiatric care in certain circumstances. In a review of EU Member States` legislation on involuntary treatment and placement, the European Union Agency for Fundamental Rights (FRA) found that involuntary psychiatric care is allowed, although the specific conditions are different: all countries require the presence of a mental disorder and almost all countries require the person with a mental disorder to pose a threat to oneself or others (FRA 2012; cf.
Dressing and Salize 2004). If legislation on the involuntary treatment of persons with mental disorders were to evolve in accordance with the critics` proposal, we could, as I will explain in more detail below, find ourselves in a situation where an offender who has committed a crime under the influence of a serious mental disorder is exempt from punishment, but has the right to: to refuse care. Such a perpetrator would therefore no longer have any consequences for his actions and could continue to pose a threat to others. Both models of criminal responsibility relate to knowledge of right and wrong and may therefore appear stricter than both models of capacity to consent. However, the conclusion that the conditions of criminal responsibility are more demanding because of this condition raises two problems. First, the ability to consent presupposes that all available alternatives, i.e., treatment and refusal, are legal options. The requirement that a person understand right and wrong in the sense of criminal responsibility is not relevant to the capacity to give consent. Second, in order to give consent, a patient must understand the nature of their illness and the possible consequences of treatment and refusal. Understanding that one`s own mental disorder can put a person in a situation where terrible acts are committed is an important consequence.
Furthermore, since mental disorders can contribute to the emergence of a number of different crimes, it is necessary that a person, in order to be able to consent, understand this and also understand the nature of these crimes. Because this is complex information, the bar is set when an individual is deemed capable of giving consent. This, in turn, reduces the number of people reaching this threshold. Moreover, the risk and nature of possible future crimes cannot be fully understood and certainly not appreciated without taking into account the falsity of criminal acts. Footnote 8 Antisocial personality disorder (ASD) is one such diagnosis that is widely and arbitrarily applied to many inmates. As a result, there is debate about whether ASPD is a psychiatric illness or simply a societal moral judgment. The label is increasingly used to portray criminals as victims of psychiatric illness. [4] Therefore, it is imperative that clinicians ensure that diagnoses are only used when features are present, so that criminals do not use the cloak of psychiatric diagnosis to avoid criminal sanction. The ability to give informed consent is a central concept of health ethics and marks the line between people who can and cannot undergo involuntary treatment. Mental disorders can impair a person`s ability to consent, but they do not necessarily do so. To understand the link between mental disorders and the capacity to consent, we need to take a closer look at what it takes for a person to have that capacity.
While the same mental disorders that tend to undermine criminal responsibility also tend to undermine the ability to refuse treatment, there will always be room for mentally disordered offenders who are able to refuse treatment. The reason for this is the decision-making nature of criminal responsibility and the capacity to give consent. The decision to commit a crime is different from the decision to refuse or consent to treatment. A person with an obsessive-compulsive mental disorder may have a perfectly adequate understanding of their condition and, as such, be able to make competent decisions about possible treatment. Second, the decision to commit a crime is usually made at a different time than the decision to accept or refuse care. A person`s mental state can change over time and, for example, the use of antipsychotic medications can restore a person`s capacity. Prior criminal responsibility is the idea that a person assumes criminal responsibility for any subsequent criminal act committed under the influence of a mental disorder if he or she refuses treatment for his or her psychiatric problems (which is deemed necessary by a doctor and/or a court). This proposal depends on two essential characteristics. First, people are responsible for refusing care, and second, we can spot disruptions that can potentially relieve someone of responsibility. I will present a sketch of these two features in the next two sections.
An essential element that plays into the false ambiguity of psychiatric illness and crime is the mislabelling of all criminals as mentally ill. Society as a whole views behaviour and behavioural problems as a symptom of a mental disorder that has led to the false public perception that crime is equated with psychiatric illness. The high number of mental illnesses reported in prisons and prisons is mainly due to the mislabelling of criminals as psychiatric patients. These figures are not always based on clarification and thorough medical and psychiatric diagnoses, but on social factors. [3] King, Matt and Joshua May. 2018. Moral responsibility and mental illness: a call for nuance. Neuroethics, 11(1): 11-22. Swanson, Jeffrey, Charles Holzer, Vijay Ganju and Robert Tsutomu. 1990.
Violence and psychiatric disorders in the Community: results of epidemiological surveys of catchment areas. Hospital and Community Psychiatry, 41: 761-770. The basis of the defense of legal insanity is the idea that only those who are morally responsible for a crime – those who are guilty of it – deserve to be punished.