Illness and Insanity

It is really important that we distinguish between illness and insanity, because whilst they may overlap, they can often be uncorrelated and they are distinct concepts from two different worlds - I deliberately don’t restrict this observation to mental illness, either.

Illness and / or mental illness are medical or psycho-social concepts; insanity is a legal or socio-legal one.  Actually, neither of them are perfect or completely clearly defined.

Physical illnesses (like neurological disorders), organic conditions (like Alzheimer’s or dementia) and injuries (to the brain) can lead to cognitive problems which could have bearing on potential criminal liabilities for acts done whilst ill / injured.

Let me give my punch-lines in blunt form, first of all:

• The fact that someone is / has been mentally ill or otherwise cognitively affected by an illness does not automatically mean that they are insane.
• The defence of insanity requires a ‘disease’ of the mind, but the defence of automatism can also cover other behaviours which may have arisen from injury.
• People who offend whilst ill, do not always offend because they are ill – each case on its merits.
• Even where offences are partly or wholly attributable to an illness, it does not mean someone is always ‘insane’ or can raise a defence of automatism – each case on its merits.

I have previously written about ‘insanity‘ and commented that it is a legal concept, not a medical one.  Forensic psychiatrists often use the term ‘insanity’ only in the context of writing reports for court processes, to inform the legal process.  They rarely use them term otherwise, and certainly do not discharge their duties as mental health professionals according to it.  Insanity is a legal concept, not a medical one, and it is not an ideal one, at that.

I will let you read more on insanity in that original post to save repetition but here want to focus again upon debunking the myth that a crime committed by someone suffering from mental disorder should be bifurcated into crude categories which define our social response.  I also want to argue for greater joint education in this arena for professionals on all sides.

I have previously written about prosecution generally and about prosecution decisions specifically being determined by one important variable: whether or not someone who is arrested for an offence is ‘sectionable’ under the Mental Health Act.  If you are, you start to be thought about in terms of ‘diversion’ (whatever that means) and if not, you don’t.  This is too blunt – we need to be far more sophisticated.  You are agreeing with me about this if you agree with both of the following statements:

• If someone has a (history of) mental illness, it is not always necessary or appropriate to formally prosecute them for an offence, nor does it always have utility.
• If someone is suffering from a mental disorder of a nature or degree that does require admission, it may still be necessary and desirable to prosecute them in the public interest to allow Part III of the Mental Health Act to take its majestic course.

It was never the intention of Parliament for this ‘sectionable’ variable to become the determining factor of how to proceed.  The now legendary Home Office circular 66/90 which still encapsulates Government policy on the approach to the prosecution of mentally disordered offenders does talk about reaching a distinction between those who should be prosecuted in the public interest and those who could or should be ‘diverted’, whatever that means.  It does not just give any simplistic criteria for determining ‘diversion’ but suggests a careful weighing of relevant issues, case by case.

In my own view, if we are to conceptualize how to categorise mentally disorder offenders – something which I think is extremely prone to generating very poor outcomes indeed – then we should be thinking of way more than half a dozen categories, combining the seriousness of the offence, the nature and degree of someone’s mental disorder, the availability and desirability of treatment options where they live.  It is such a silly idea that I can’t get going with it.

Making decisions about how to move forwards from crime committed by someone who is suffering from mental disorder is amongst the most complex work that criminal justice or mental health professionals will ever undertake.  This is not my view: it is that of Professor Jill PEAY in her book Mental Health and Crime (2010) which I commend to you all.  As such, the trick surely is to understand what we are trying to achieve, the context in which we are trying to achieve it and the available options by which to do so?  This will then lead the decision-makers to narrow their field of options to suit individual circumstances – and we need to learn how to do this jointly.  This means sharing information, establishing structures by which to do so and allowing health decisions to be influenced by police / prosecutors and vice versa.

We need to have police officers and prosecutors who properly understand Part III of the Mental Health Act 1983 – the remand provisions of ss35/36 are still massively underused and misunderstood; but we also need healthcare commissioners and practitioners and who understand the criminal justice system and the inherently artificial entry conditions to services that we find criminalising, excluding and stigmatizing their client group, exposing them to risks.