Assessment and Reporting for Mental Condition Defences
Clinical issues
It is crucial to establish the intent in relation to which offence you are being asked to give an opinion, as advised by the instructing lawyer. And clearly the issue relates to their mental state at the time of the alleged offence.
In summary terms, as with ‘insanity’ and ‘automatism’, what is required is to establish whether any condition was present at the time which made it more likely that they did not have the capacity to form the relevant intent, plus detailed determination of the nature of their likely symptoms at the time, and of how these might have interfered with the relevant capacity. Again, what is relevant is not just symptoms per se, but their impact upon the relevant capacity. For example, delusions might interfere with the capacity to form intent for some crimes; or indeed to be relevant to jury consideration of whether, in fact, they did form such intent. Severely abnormal mood states, severe agitation or poor concentration might also affect the capacity to form intent, or the likelihood that they did so. Cognitive impairment might also be relevant.
In relation to intoxication with drugs or alcohol, the likely degree of intoxication should be estimated. However, it is important to note that ‘the amount consumed per se’ is not necessarily indicative of likely ability to function, in that this will depend upon ‘tolerance’, and therefore consumption habit. And, as regards attempting directly to assess the defendant’s likely ability to function at the relevant time, ordinary witness statements may be more reliable than an attempt medically to reconstruct their mental state.
Diminished responsibility
Diminished responsibility is a partial defence and available only in relation to a charge of murder in most common law jurisdictions. Hence, if the victim of a severe attack manages to ‘cling onto life’, such that the defendant can be charged only with attempted murder, it does not apply. Te result of a successful plea is that the defendant is convicted of manslaughter rather than murder. It is a defence which can be raised only by the defence, such that, if the defendant refuses to plead it, he will be convicted of murder. Tis can cause major difficulties, and injustices, in that a floridly psychotic defendant, for example, may have a very strong defence available to him yet, because of his delusional beliefs, refuse to plead it. And, if he does not come within the very stringent legal terms of being ‘unfit to plead’ (see Chapter 10), he will be convicted of murder, when in ‘natural justice’ he should be convicted only of manslaughter. Te impact of this injustice in a jurisdiction retaining the death penalty is obvious, in that such a defendant will thereby be vulnerable to such a sentence, albeit his disorder would be likely to result in him not being sentenced to death if the penalty is discretionary in nature.
Of course, in any jurisdiction retaining the mandatory death penalty on conviction of murder, the injustice is stark and real, in that the defendant will only be able properly to avoid execution by way of his disorder either being considered within the ‘mercy hearing’ stage, which is conducted within the executive and not at court, albeit there are legal requirements to its conduct (see Chapter 13) or the court happening to determine that he is ‘unfit for execution’ (see Chapter 12).
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