The “mad / bad” debate gets everywhere. We recently heard from a BBC Journalist on Twitter talking in the context of the Anders Breivik verdict asking whether he would be “mad / sane”. This was done as if they are opposite things when in fact they are not even related concepts: the first is a pejorative, playground term for mental disorder, the second is a legal concept.
I first got my head into this stuff by reading a book by Australian academic Deirdre Greig: “Neither Mad nor Bad. The Competing Discourses of Psychiatry, Law and Politics.” She wrote about the interface between law and psychiatry precisely to acknowledge that the ‘mad / bad’ dichotomy was unsatisfactory to explain it and she did it after the case of one man in Melbourne: Garry David.
Garry David generated such a debate about “mad versus bad” that he alone was eventually subject to an Act of the state Parliament, the Community Protection Act 1990. This Act was intended to resolve the public safety concerns that arose from the fact that neither the criminal law of the state of Victoria, nor the mental health system seemed able to protect the public from what were considered to be very real ongoing threats that emerged towards the end of his criminal sentence following conviction for an offence. His extreme, self-mutilating behaviour was considered very obviously to be evidence of mental illness and criminal justice authorities were looking at the mental health system to ensure his ongoing detention. However, various psychiatrists would not diagnose a mental disorder so the very real prospect of his release from prison was contemplated. This led to the Community Protection Act 1990 – do we know of any other laws specifically written for just one person?
So why does this debate exist in developed societies in the 21st century? Well, it is at least partly because the current constructs of medicine do not fully account for the human experience of mental illness or mental wellbeing – it’s known to be about more than medicine. You only need look at the tension surrounding the re-drafting of the Diagnostic and Statistics Manual to see this. And it is partly because the law has sought to define legal constructs that account for these primarily medical, not psychological definitions – and we know the law hasn’t done this in the context of what we know about 21st century experience of mental illness. You only have to look at how laws have only comparatively recently considered ‘personality disorder’ as a ground to detain someone under mental health law.
Our ‘insanity’ laws were written in the first half of the 19th century. Just think what science has taught us about medicine and mental health since then? Just think what we have learned about the role of psychology and sociology in the development of mental health problems; think what we know about our politics and society and how we respond to mental ill-health … can it be the our laws are right and remain current? But then attempts to reform them are extremely difficult as the previous Government found during the first decade of this century.
More to the point of the title of this piece, we hear “mad versus bad” as if they are opposites of some kind. in fact they are two inherently unrelated constructs from two different paradigms: medicine and law. So this misunderstanding leads to us rarely seeing any debate about criminal suspects who are mentally ill that acknowledges that someone could be both mad and bad. Even if someone was suffering from a mental health problem at the point where they committed an offence, that illness or disorder does not necessarily excuse them from criminal liability – but it might.
Work at the interface of mental health and criminal justice is amongst the most challenging that either set of professionals will undertake, according to Professor Jill Peay in her book Mental Health and Crime (2010). Part III of the Mental Health Act contains a variety of mechanisms to balance the difficult considerations that arise when mental disorder is present during criminal investigation, but that law is already almost thirty years old and a lot of it still based on earlier laws from the 1950s.
This post was written on the back of moving beyond 100,000 hits earlier today. I wanted to mark this event by putting down what I think is at the heart of the operational problems faced by the police and the social problems whose symptoms reach police attention. Neither law nor medicine have properly defined themselves around a 21st century understanding of what we know: and they certainly haven’t done this together.
As such there are frequent collisions between law and mental health and guess who they’re managed by? By police officers in someone’s private dwelling acting as out of hours crisis services; by officers making complex decisions about ‘diversion’ (whatever that means) with only half the information at hand; by officers managing complex and vulnerable people where the provision of mental health care has (sometimes) been left until after someone has offended and where immediate responses are confused by substance abuse and the constraints of office hours health services; by officers who are denied access to mental health and other health services because of a functionalisation debate within the NHS to which the police were not invited and which leads to the gaps.
We’ve still got loads of work to do in this area: most of it around educating staff working within both paradigms to understand more about the very real interface we’ve created without design. People are falling between gaps because we’ve built our responses to an interface between 19th century laws and 20th century science that fails to take proper account of very important factors just prior to changing from an institutional form of care to a community based model where those unconsidered factors are amplified.
There’s a lot of catching up to do.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2012
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
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Mental Health Cop 
I’m going to go back to impulse control.This is essential for adequate functioning in society. Severe lack of impulse control (and let’s find a way to measure this accurately) means a person is less likely to be observant of the law and more likely to be a danger to others.
I’m also going to refer to ‘by their deeds shall ye know them’. The factors that inspired the action are of consequence only in the subsequent handling of the perpetrator. They are not germane to apprehension or detention. Let us discriminate when we come to sentencing and provide treatment/rehabilitation/whatever at THAT point.
Mad or bad is indeed a facile notion. As you point out it is obvious to most of us that (whatever those terms may mean in common parlance) it is perfectly possible to be both mad and bad.
First time I have read ‘mental health cop’ blog, a thoughtful and passionate blog about some very complex issues. I m an AMHP and social worker in children’s services. Some the most uncomfortable times in these roles have been when i feel that some very serious criminal behaviour has been excused by reference to a person being ‘ill’ at the time of the offence. As this post suggests we need to get better at coping with the complexity of being mad and bad not mad or bad!! Otherwise we’re a merely reinforcing negative stereo tpes about aboutpeople in mental distress being inherently dangerous/different!!?
Spot on!!! – and thanks for the comments. Much appreciated.
Thanks, Dan – I think we’ve got loads of work to do on the investigation of offences involving people with mental health disorders. We still haven’t clarified how to make good decisions and I totally agree with your remark.