It is a mistaken belief that those who commit bizarre, perverse or shocking crimes must be mad, writes Dr Harry Kennedy
Ian Huntley, the school caretaker charged with the murder of Holly Wells and Jessica Chapman, was admitted to a secure hospital earlier this week under an assessment section of the English Mental Health Act. The use of the assessment procedure reflects a degree of uncertainty about the nature of his apparent mental disorder. Whatever the outcome of the assessment, Mr Huntley will still have to be returned to court and tried before a jury.
This raises issues about the use of mental health legislation in cases where people are charged with serious crimes. It is a common but mistaken belief that those who commit bizarre, perverse or shocking crimes must be mad.
In practice, the great majority convicted of such crimes turn out to have no mental illness, though alcohol and drug problems are commonly associated. At the same time, in all developed countries, increasing numbers of people with severe mental illnesses are accumulating in prisons, charged with the most minor of public order offences - typically shouting in the street or arguing with the police.
Here in this State, a person charged and remanded to prison can be transferred to hospital for treatment if two doctors certify he is of unsound mind and the Minister for Justice issues an order under legislation that dates back to Victorian times. In practice, no matter how minor the offence, these orders are always made out for admission to the Central Mental Hospital, Dundrum, the national centre for secure psychiatric treatment.
At trial, defendants may be found unfit to plead if they are so severely disturbed that they are unable to instruct their lawyers or unable to follow proceedings in court. This leads to indefinite detention at the Central Mental Hospital, once again under legislation that is over a century old. Because of the risk that an innocent person might be detained in this way, without a trial to establish the facts of the alleged crime, it is usual to defer the trial while the defendant is treated for the illness.
It is now very rare for anyone to be found unfit for trial.
Insanity is a legal invention, a "diagnosis" that can only be decided by a jury. This is as it should be, since it is a judgment on the moral question of guilt, and there are no "experts" on morals - at least none that are recognised by the courts.
Although the courts are not bound by psychiatrists, they are called to give evidence in insanity trials. To prove insanity, it must be established that the defendant had a disease of the mind at the time of the offence. In practice this means a very severe illness, usually with delusional beliefs. Even severe forms of depression may not be enough.
It must also be established that because of this mental disease the accused person acted with innocent intentions. He must not have known the nature and quality of his act, or he must not have known that he was doing wrong. Many people with severe mental illnesses fail this exacting test.
In Ireland, the United States and other jurisdictions, the traditional test is made easier by adding an additional option, the "irresistible impulse". Judge Henchy in 1967 defined this as the situation where the defendant was "debarred from refraining from [the act] because of a defect of reason, due to his mental illness". The tortured double negative suggests that the normally lucid jurist was uncomfortable.
The philosopher Anthony Kenny described irresistible impulse as a metaphysical fiction, a fictional parameter begotten of conceptual confusion. In other jurisdictions, this problem has been tidied by legislating for a new defence of diminished responsibility, a verdict that can lead to a psychiatric disposal or other sentence as the judge sees fit.
In Australia, the United States and Britain, it is common for the mentally ill to be diverted from police stations and courts directly to the appropriate hospital, usually the local hospital, sometimes a secure hospital.
Giving the courts the power to make hospital orders in serious cases, and simply introducing psychiatric clinics into the busiest courts to divert less serious cases achieves this.
The shameful use of the prisons as a substitute for psychiatric care and treatment is prevented or at least reduced.
In Ireland, as long ago as 1996 over 4 per cent of prisoners in Mountjoy prison were found to be psychotic, though figures are even worse in some other jurisdictions.
The killing of the two children in Cambridgeshire was an appalling event. It will be at least a year before the full facts of the case emerge in court.
There is some comfort in recognising how rare an event it was. But the case has caused a critical interest in how the courts deal with alleged mental illness.
Psychiatrists in Ireland, particularly those of us who provide clinics in the busiest prisons, would appreciate new and enlightened legislation soon. We would also appreciate the opportunity to consult with the Department and the legislators.
It is possible for legislators and courts to improve the mental health of offenders, particularly when they work with the mental health services and with patient and carer groups.
Dr Harry Kennedy is a consultant forensic psychiatrist at the Central Mental Hospital, Dundrum, Dublin.