Report on the Review of the Mental Health (Scotland) Act 1984

Chapter 29

INSANITY AND DIMINISHED RESPONSIBILITY

Background

1. The criminal law contains provisions which allow some people with mental disorders to be treated as not fully responsible for their actions: the plea of insanity in bar of trial (or 'unfitness to plead'), the special defence of insanity and, in charges of murder, the plea of diminished responsibility. These are essentially common law provisions, and are not dealt with directly in the Mental Health Act itself. We have given consideration to them, nevertheless, for two reasons. Firstly, the result of a finding of insanity or diminished responsibility is generally that the individual will be detained in hospital under the provisions of the Mental Health Act. Secondly, our consultations suggest a degree of dissatisfaction with the way in which these provisions operate.

Insanity in bar of trial

2. It is fundamental to our system of criminal justice that an accused person must be able to understand and participate in his or her trial. Accordingly, if a person is found to be mentally disordered to such a nature or degree that they cannot understand the trial process or instruct their own defence, no trial can proceed. The person is said to be 'insane in bar of trial' or 'unfit to plead'.

Definition of insanity in bar of trial

3. Insanity is held to operate as a bar to a trial if it 'prevents a man from doing what a truly sane man would do and is entitled to do-maintain in sober sanity his plea of innocence, and instruct those who defend him as a truly sane man would do'⁴⁸. It is possible to be unfit to plead in regard to the particular subject matter of the case, even if sane in ordinary matters⁴⁹. This could presumably apply to a person with mental illness. It appears to be possible to be insane in bar of trial if suffering from a degree of learning disability which would prevent participation in the trial process⁵⁰, although, as we discuss below, there is still doubt as to the law in relation to this. In rare cases, physical disability, such as being mute, might suffice.

4. The most commonly accepted definition of the plea is set out in the case of Wilson⁵¹, that it requires:

'a mental alienation of some kind which prevents the accused giving the instruction which a sane man would give for his defence or from following the evidence as a sane man would follow it and instructing his counsel as the case goes, along any point that arises'.

Establishing insanity in bar of trial

5. Before finding an accused person to be insane in bar of trial, the court must have the written or oral evidence of two medical practitioners⁵². It is however, for the court to make the decision, and it is not bound to accept the medical opinion. Research on behalf of the Scottish Office (summarised at Annex 10), established that there were 40 cases involving a plea in bar of trial in the period from 1 April 1996 to August 1998⁵³. The accused was found unfit to plead in 32 of these cases.

6. Under the procedures introduced by the Criminal Procedure (Scotland) Act 1995, a finding of insanity in bar of trial means that a criminal trial cannot proceed. Instead, an 'examination of facts' is held.

The examination of facts

7. The examination of facts (EOF) was introduced to deal with a perceived defect in the legislation prior to 1995: that a finding of insanity in bar of trial automatically led to a hospital disposal, without evidence having been led to establish that the accused person actually committed the wrongful act which formed the basis of the charge.

8. An examination of facts is conducted, as nearly as possible, according to the normal procedures which apply at a criminal trial, although it does not involve a jury⁵⁴. The accused person must be legally represented.

9. The court has to determine whether it is satisfied beyond reasonable doubt that the accused person did the act or made the omission constituting the offence specified in the charge, and, on the balance of probabilities, that there are no grounds for an acquittal. When the court is so satisfied, it makes a finding to that effect. If not so satisfied, the accused person must be acquitted.

10. If acquitted (on either ground), the criminal proceedings come to an end. The accused person cannot be retried, and any detention on mental health grounds would have to be under separate civil detention proceedings. (We discuss the situation of people who might be acquitted but felt to require civil detention in Chapter 25.)

11. There are special provisions where the EOF acquits the accused on the ground that the person was insane at the time of doing the act or making the omission: in other words, where it is found that the accused was insane at the time of the crime, as well as at the time of trial. These are discussed below.

12. If the EOF finds that the accused did the act or made the omission charged, and there are no grounds for acquittal, the accused person will again be liable to one of the range of disposals which can be imposed following a finding of insanity.

13. The research found a total of 30 EOFs during the research period. The facts were held to be established in 22 cases; in three cases the facts were held to be established but the accused was found to be insane at the time of the offence, and in five cases the facts were held not to be established.

14. A mental health disposal following an examination of facts is not a 'sentence' for the crime. Arrangements can be made for criminal proceedings to be resumed at a later date, should the accused then be fit to stand trial. It is also possible for people found insane in bar of trial prior to the introduction of the examination of facts in 1995 to be brought to trial on recovery.

15. We understand that it is uncommon for an individual who has been found insane in bar of trial to be retried. However, in respect of restricted patients, the Crown does receive information about progress from time to time, as part of ongoing consideration of whether a new trial would be in the public interest.

Insanity as a special defence

16. The special defence of insanity serves to excuse an accused person from criminal responsibility for his or her actions. The defence can be raised either during an ordinary trial or an examination of facts. If established, it results in an acquittal, but the accused person is still potentially subject to a range of disposals, which we discuss below.

17. The definition of insanity in relation to the special defence is different to the definition in relation to a plea in bar of trial. The test was laid down in the case of Kidd⁵⁵, as follows:

'There must have been an alienation of the reason in relation to the act committed. There must have been some mental defect...by which his reason was overpowered, and he was thereby rendered incapable of exerting his reason to control his conduct and reactions'.

18. The question of insanity is decided by the jury (or the judge in summary cases), in the light of evidence. It is necessary to have regard to medical evidence, but this is not taken as being conclusive. However, it is necessary for there to be a clinically recognised mental disorder before a plea of insanity can be sustained⁵⁶.

19. The test is different from the test in England and Wales, where the so-called McNaghten rules apply⁵⁷. Broadly speaking, the English rules require that the person must have been suffering from a disease of the mind with the result that he or she did not know the nature or the quality of the act or, did not know that it was wrong. The effect of the difference is that the Scottish courts consider broader questions as to the severity and effect of a mental illness on reasoning generally, while the English courts focus more narrowly on questions of cognition.

20. In the period April 1996 to August 1998 covered by the research, 15 cases involved an insanity defence, and the plea was upheld in 12 of these.

Disposals following a finding of insanity

21. Until 1995, anyone found insane in bar of trial, or insane at the time of the offence, automatically received a hospital order, usually combined with a restriction order. This was criticised as being too inflexible, particularly if the person's mental condition by the time of trial no longer justified detention in hospital. Except in the case of murder, the court can now make the following disposals:

• hospital order
• hospital order with restrictions
• guardianship under the 1984 Act (from April 2002 the Adults with Incapacity (Scotland) Act 2000)
• supervision and treatment order
• no order.

22. The supervision and treatment order is unique to cases where there has been a finding of insanity. It requires the person to reside in the community under the supervision of a social worker and submit to treatment by or under a registered medical practitioner. The maximum period of the order is three years⁵⁸.

23. There are special rules where the charge is one of murder. If insanity is established, the court must impose a hospital order and restriction order without limit of time⁵⁹.

24. During the period covered by the research, hospital orders were imposed in 26 cases (nine with restriction orders attached), supervision and treatment orders in five cases, a guardianship order in one case, and no order in three cases.

Concerns regarding the insanity provisions

Lack of clinical meaning

25. There is widespread unhappiness with the notion of 'insanity'. This is no longer, if it ever was, a clinically meaningful term, and is not one which mental health professionals would use in any other context.

26. The Scottish Association for Mental Health (SAMH) and the Law Society, amongst others, pointed out that the term 'insanity' is stigmatising and conjures up unhelpful and inaccurate images of mental disorder. The Law Society suggested a term such as 'not responsible by reason of mental disorder' as a more appropriate alternative. However, the problems are deeper than the name of the plea. The Royal College of Psychiatrists described the current definitions as 'outmoded and clinically incomprehensible'.

Difficulties with the legal meaning

27. The research showed a considerable degree of confusion about the way in which the clinical assessment by a psychiatrist should relate to the particular legal tests.

28. The problems with the definition of insanity, both in relation to the special defence, and the plea in bar of trial, are long standing. The Butler Committee, in 1975, reviewed the definition of insanity in England and Wales, and concluded that it should be reformed⁶⁰, but this had not been taken forward. In their response to our first Consultation, the Royal College of Psychiatrists suggested that the Butler recommendations be adopted, namely that the insanity defence be replaced by a finding that the accused is not guilty on evidence of serious mental disorder, with there being a definition of what is meant by serious mental disorder.

29. In approximately a third of the cases concerning a plea of insanity in bar of trial reviewed during the research there were problems concerning the interpretation of the legal tests determining fitness to plead⁶¹. This is not surprising, since the case law appears to give little guidance as to the degree of mental disorder which amounts to unfitness to plead.

30. There appeared to be particular confusion in relation to mental impairment or learning disability, and the researchers noted that 'there was never any real consensus from legal or medical personnel on mental impairment as a reason for unfitness to plead'⁶².

Role of psychologists

31. In evidence to us, the British Psychological Society expressed strong concern about the lack of a formal role for psychologists in determining insanity, particularly in relation to people with learning disabilities. They pointed out that such a case essentially turns on the person's cognitive understanding, and that the assessment of such understanding lay within the competence of psychologists rather than psychiatrists. Although it is not uncommon for psychologists to give evidence, there is no requirement in the legislation that this be done. There is a requirement to have evidence from two psychiatrists, even where a psychiatrist may not be in a position to give the best evidence as to the person's fitness to plead. This point was also highlighted in the research⁶³. In Chapter 26 we recommend that for any mental health disposal in a criminal case, the court should be entitled to take additional evidence from a clinical psychologist. Such evidence might be particularly appropriate in considering the question of fitness to plead.

Practical problems

32. Notwithstanding the problems regarding the way in which insanity is defined and established, the research found general approval of the changes introduced in 1995 for dealing with people found insane. This was also reflected in the evidence submitted to us.

33. We note however some practical problems identified in the research⁶⁴. The researchers comment on problems of delay, including delay in securing legal aid for specialist reports, and in cases coming to court. They also comment that some accused persons had been held for substantial periods of time on remand, with the result being that their mental state deteriorated and they became unfit to plead.

34. There appears to be a particular problem with people with mental impairments, who may not be assessed as suitable for hospital admission pending the determination of the case. Such people would be vulnerable in prison, but may re-offend in the community, and there appear to be difficulties in identifying suitable secure placements while on remand.

35. Although the idea of an examination of facts attracted general support, there was concern that the outcome of an EOF could prejudice a subsequent trial, should the accused recover. There were also difficulties with the trials of co-accused persons running alongside EOFs.

36. In one case, the accused was excused from being present at an EOF, and then acquitted because witnesses were unable to identify him in his absence.

37. So far as we are aware, no action is in train to address any of these perceived problems.

38. There were concerns expressed to us about supervision and treatment orders. It was felt by some people that the lack of sanctions should a person breach a supervision and treatment order, for example by failing to take medication, meant that such orders were of limited value. The research found one case where no action was taken under a supervision and treatment order and the person disappeared.

Insanity in murder cases

39. We were particularly concerned about the implications of the special defence of insanity in relation to a person charged with murder. Unlike in the case of any other offence, such a person must receive a hospital order with restrictions. This seems to us to be a potentially arbitrary outcome. It is possible that the accused person may have partially or wholly recovered from the mental disorder from which he or she was suffering at the time of the offence. A hospital order may be inappropriate, since the person may not require hospital treatment. Indeed, he or she may be able quickly to appeal against the continuance of the order and be discharged.

40. However, while releasing the individual may be acceptable in cases where the mental disorder is unlikely to recur, there may be cases where the individual continues to present a degree of risk, and it would seem wrong that such a person, who has committed a homicide, should be released into the community without supervision.

41. The arbitrariness is emphasised when one considers that a person whose mental disorder at the time of the crime was slightly less severe might be convicted of culpable homicide on the grounds of diminished responsibility, and be eligible for a broader range of disposals, even although the risk and treatment needs in each case may be very similar.

42. A person found insane in bar of trial on a charge of murder is also subject to a compulsory disposal of a hospital order with restrictions. This presents less of a difficulty since the finding implies the presence, at the time of trial, of a severe mental disorder.

Conclusions as to insanity

43. We were satisfied that the criticisms of the definition of insanity, both in relation to the special defence, and as a plea in bar of trial, carried considerable weight. It seems to us wrong that such an important issue as determining the responsibility of an individual for a serious criminal charge should depend on terms and definitions which are largely meaningless to those with the responsibility of giving expert evidence to the court.

44. However, it is clear that reform is not a simple matter. A change in the definition might throw into doubt the effect of existing caselaw, notwithstanding the difficulties psychiatrists have with the current terms. Any new definition would still require medical evidence to be assessed against legal criteria. The question of when mental disorder ceases to make a person responsible for their actions is one of considerable philosophical and practical complexity.

45. In our second Consultation, we proposed that an independent review of the law relating to insanity and diminished responsibility (which we discuss below) be established. This attracted widespread support. However, an alternative approach would be for the matter to be considered by the Scottish Law Commission, who have considerable experience and expertise in reviewing such complex areas of the law.

46. In the meantime, we are persuaded that the requirement that evidence as to insanity be given by doctors is too narrow. In some cases, we agree that psychologists would have an equally valid contribution to make, and we feel there is a strong case that the legislation should recognise this. This would be one issue which should fall to be considered as part of the overall review.

47. In respect of supervision and treatment orders, we believe that the powers of enforcement should be strengthened. It should be possible to stipulate that the supervised person be required to accept particular treatments, or other interventions designed to reduce or manage risk. Should the person fail to comply, it should be possible in appropriate cases to admit the person to hospital for compulsory treatment, in the same manner as we envisage for community orders.

48. Indeed, if our proposals for community orders are accepted, such orders could be made equally to apply to those receiving a mental health disposal in relation to a criminal case, and could include a wide range of measures designed to ensure the mentally disordered person receives appropriate care and supervision.

49. In relation to people charged with murder, who are acquitted by reason of insanity, we proposed in our second Consultation that such offenders should be eligible for the same range of disposals as other people found insane. Responses were generally in support of this change, although the Royal College of Psychiatrists argued that the legislation in 1995 was based on a view that charges of murder required special treatment, and there was little reason to change this view.

50. We are still of the view that more flexibility should be introduced into the disposal, although we are conscious that this should not be at the expense of public safety. The MacLean Committee argued that the issue of risk should be an important factor in disposing of people found insane under solemn procedure, and recommended a change in the law to allow the court to make an interim hospital order for such people⁶⁵. This would allow both the risk presented by the individual and any appropriate treatment and management strategies to be fully assessed. We endorse this recommendation.

Diminished responsibility

51. Diminished responsibility is a plea which can only be made in murder cases. If successful, it reduces what would otherwise be a conviction for murder to one of culpable homicide. The practical effect of this is that the convicted person is not bound to receive a life sentence, but can be sentenced to a range of disposals, including a discretionary life sentence, a determinate sentence, or a mental health disposal such as a hospital order.

52. The basis of a plea of diminished responsibility is that, at the time of the crime, the accused had some degree of mental disorder which was not sufficient to absolve him or her totally of culpability, but to some extent reduces his or her responsibility for the crime. It developed as a common law doctrine in Scotland, and was later introduced in England on a statutory basis by the Homicide Act 1957.

53. The classic exposition of the defence was set out by Lord Alness in the case of Savage⁶⁶, that:

'there must be aberration or weakness of mind; that there must be some form of mental unsoundness; that there must be a state of mind which is bordering on, though not amounting to insanity; that there must be a mind so affected that responsibility is diminished from full responsibility to partial responsibility...and I think that there must be some form of mental disease'.

54. Subsequent cases have established that intoxication⁶⁷, psychopathy⁶⁸, or a combination of immaturity and personality difficulty⁶⁹ would not be sufficient to establish diminished responsibility in the absence of a specific mental illness. It seems that learning disability might be sufficient to constitute diminished responsibility, although some cases seem to imply that a mental illness is necessary⁷⁰. There are differences from the caselaw in England and Wales where, for example, personality disorder appears to be a possible foundation for diminished responsibility⁷¹.

55. The main practical criticism directed at the defence of diminished responsibility is that the definition is obscure, and difficult to apply in individual cases. If it is hard to know what 'insanity' now means, it is equally problematic to state with confidence what is a state of mind 'bordering on insanity'. Even if the border can be found, how wide is it, and when can it be said that responsibility is reduced particularly as a result of a mental disorder?

56. It is not clear that the defence remains appropriate in its current form. In its origins, it was doubtless a way of preventing people with mental disorders from facing capital punishment, but this need no longer obtains.

57. The defence does not address issues of risk, so it is quite possible for a person who presents a high and continuing risk to be found to have diminished responsibility and receive a determinate sentence, while a person convicted of murder but who presents little continuing risk receives a mandatory life sentence.

58. However, the Law Society took the view that, so long as the mandatory life sentence remained for murder, it would be necessary to have some defence along the lines of diminished responsibility.

59. There is an argument that the mandatory life sentence for murder should be abolished, to allow sentencers to pay proper regard to the circumstances of the crime, the risk presented by an offender, and any mitigating factors, including mental disorder, in passing sentence. This was the approach recommended by the Butler Committee⁷², who felt that the defence of diminished responsibility would then not be required.

60. However, to adopt this approach and its recommendation would have implications well beyond the area of mental health, and is something which we could not consider within the terms of our remit.

61. We believe, nevertheless, that the defence should be reviewed, and that it would be appropriate to do so alongside consideration of the issue of insanity, which we discuss above. The proposal that this be done met with considerable support and little opposition in our second Consultation, and we so recommend.

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