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Assessment and Reporting for Mental Condition Defences


Defect of reason amounts, from a psychiatric perspective, to a very narrow and restrictive disability; that is, a defect of cognition, not of emotion or volition.


Not knowing the nature and quality of the act is also a very narrow and restrictive form of defect of reason. Although it might be impaired by virtue of psychosis – for example, if a defendant had a belief that the act of strangling someone was a way of exorcising demons – most even floridly psychotic individuals’ delusional beliefs do not come within its terms. Tis limb of the test relates essentially to knowing the nature of the physical act the defendant was doing. It therefore represents an extremely limited form of ‘defect of reason’.


Not knowing that the act was wrong is both a highly restricted form of ‘defect of reason’ in itself, and is further limited by being defined, in R v Windle, to mean not knowing that it was legally wrong, not whether it was morally wrong . However, it is a test which can be satisfied by the effects of psychosis having been present at the time of the offence. For example, a person who falsely believed that s/he was licensed by a secret service to kill people, such that, he was not acting unlawfully, would come within the terms of this limb of the test. It might also be argued that someone who, though capable of knowing that what he was doing was legally wrong, was, at the time of commission of the offence, so subject to ‘psychotic drive’ that he was not capable of paying attention to, or did not pay attention to, the legal wrongfulness of what he was doing. However, there is no legal decision in UK jurisdictions as yet which supports this legal contention.


Tere are variations of this test in different jurisdictions, and any mental health opinion should be considered in light of the test specific to that jurisdiction. Any opinion should include specific reference to the relevant test.


In summary terms, however, the defence of insanity is usually extremely narrowly defined, and therefore is applicable only to a small number of extremely psychotic or brain disordered defendants.


Te issue of insanity is determined, as with any other defence, by a jury. Clinical assessment


Any mental health expert addressing a case where insanity might apply must consider the likely mental state of the defendant solely at the time of the alleged offence, and in dissected detail. Te assessment must go beyond making a diagnosis and retrospective determination of the likely mental state at the time of commission of the actus reus (guilty act) but address the defendant’s functional abilities at that time, specifically in terms of the functional limbs of the legal test (see above). Hence, clinical assessment will need specifically to address:


• Te defendant’s understanding of their actions per se at the time


• Te defendant’s knowledge of the legality of their actions at the time; albeit a lack of knowledge now might tend to suggest a lack at the time of commission of the actus reus it is clearly not definitive of it


• Te defendant’s explanation for any behaviour suggesting knowledge of illegality


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