Is Diminished Responsibility a psychiatric matter ?

1. Is Diminished Responsibility a psychiatric matter ? Birmingham and Solihull Mental Health NHS Foundation Trust

2. What is it? Birmingham and Solihull Mental Health NHS Foundation Trust Partial excusatory defense for murder Specific for murder Burden of proof on the defense

3. Why DR Birmingham and Solihull Mental Health NHS Foundation Trust Murder has a mandatory sentence : used to be death by hanging. Only MH defense was insanity with its strict criteria. Categorical (Law) vs. dimensional (Psychiatry) Gower's commission , 1953, recommended removal of mandatory penalty so that rather than changing the nature of the offence, the impact of mental illness can be reflected in the penalty.

4. How did it evolve? Birmingham and Solihull Mental Health NHS Foundation Trust Earliest recorded case :Somerville 1704(Hume). Following the Act of Union (1707) such cases were referred for Royal Pardon Lord Deas first Dingwall (1867), directed jury that he could be convicted of culpable homicide as against murder based on his reduced culpability on account of mental illness. Further established in 6 cases by the same judge between 1867 and 1882 English system-Gowers commission recommendations were not accepted due to a change in the Government and in the climate of intense debate around abolition of death penalty, it was seen as a concession to the abolitionist cause. Section 2 of the Homicide Act 1957

5. Section 2 Homicide Act Birmingham and Solihull Mental Health NHS Foundation Trust Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such an abnormality of mind (---arrested or retarded development of mind, inherent cause or induced by disease or injury) as to substantially impair his mental responsibility for his acts or omissions ----

6. Are these psychiatric Concepts?Show of hands Birmingham and Solihull Mental Health NHS Foundation Trust Abnormality of Mind arrested or retarded development of mind, inherent cause or induced by disease or injury Mental Responsibility

7. Abnormality of mind Birmingham and Solihull Mental Health NHS Foundation Trust No agreed psychiatric meaning Legal meaning : ‘state of mind so different from that of ordinary human beings that a reasonable man would term it abnormal’ (Lord Parker –R v Byrne) Unclear and clearly not a psychiatric matter But psychiatrists commented on this matter as a matter of routine. (Dell 1984) Mercy Killing, battered wife , PMT, Diabetes, pathological jealousy and hysterical disassociation in response to tormenting neighbors. In a third cases of mercy killing doctors supported DR despite acknowledging that they were unable to discern the presence of mental disorder when they saw the offender (Dell 1984) Battered woman syndrome accepted as a diagnosis.

8. ‘substantially impaired’ Birmingham and Solihull Mental Health NHS Foundation Trust ‘more than trivial and less than total’(R v Lloyd 1967) Approach in a common sense way Routinely commented upon by psychiatric reports.

9. Mental Responsibility Birmingham and Solihull Mental Health NHS Foundation Trust Responsibility - Measure of culpability and liability for punishment. Butler Committee – ‘it is a moral or a legal and not a medical question’. Psychiatrists are expected, even encouraged to comment on the issue (Dell 1984)

10. Question Birmingham and Solihull Mental Health NHS Foundation Trust

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12. Role of a psychiatrist. Birmingham and Solihull Mental Health NHS Foundation Trust Aetilology of abnormality of mind (Rv Byrne and R v Dix) But again no agreed psychiatric meaning for causes in parenthesis. In more than half cases psychiatric reports fail to consider the bracketed causes (Mackay RD Mackay 2004) Same diagnoses classified differently . (Dell) Highest validity in Schizophrenia- classified as a disease by 90% reports.

13. Reality Birmingham and Solihull Mental Health NHS Foundation Trust Psychiatrists comment on the ultimate issue of DR in 90% cases (Mackay 2004) 77% cases of DR do not go to jury and hence determined on the basis of the psychiatric reports. ~5% community disposal, >50% Hospital orders, ~10% life sentence, ~10% 4-10 years, ~15% <4 years. (Home office statistics 1999-2009)

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15. Show of Hands Birmingham and Solihull Mental Health NHS Foundation Trust Yes No Partially

16. Conclusion Birmingham and Solihull Mental Health NHS Foundation Trust It is not a psychiatric matter but Most psychiatric reports end up commenting on the ultimate issue. There are aspects of it that fall within psychiatric remit (Causes of abnormality of mind) But the causes do not have any agreed psychiatric meaning. There is a legal meaning that is at odds with consensus psychiatric opinion. Majority of cases are heavily influenced by psychiatric opinions.

17. Criticism Birmingham and Solihull Mental Health NHS Foundation Trust ‘Benevolent conspiracy between the psychiatrist and the trial judge’ (Bluglass 1980) ‘altogether a disgrace and shockingly elliptical’ (Griew 1986, journal of medical ethics) ‘Grossly abused and works like a lottery’ (Law commission report 2004)

18. New definition, Sec 52 CAJA 2009. Birmingham and Solihull Mental Health NHS Foundation Trust • “----ABNORMALITY OF MENTAL FUNCTIONING WHICH; • A) AROSE FROM A RECOGNISED MEDICAL CONDITION, • B)SUBSTANTIALLY IMPAIRED ABILITY TO UNDERSTAND THE NATURE OF CONDUCT and/or FORM A RATIONAL JUDGMENT; and/or EXERCISE SELF-CONTROL AND PROVIDES AN EXPLANATION FOR ACTS AND OMISSIONS----

19. Birmingham and Solihull Mental Health NHS Foundation Trust Abnormality of mental functioning – continue to be matter for jury Recognised medical condition – ICD 10 and DSM IV – clearly for psychiatrist Mental abilities – similar to mental capacity act. – matter for psychiatrists. Causation – matter for jury.

20. Has it changed anything Birmingham and Solihull Mental Health NHS Foundation Trust Early days. Anecdotally – no change. Not easy to change established practice. Remember CTO and Appropriate Medical Treatment in MHA 2007.

21. Requirement Birmingham and Solihull Mental Health NHS Foundation Trust Need for better understanding Majority of reports not tested. Need for regulation of report writing Education on both sides of the fence.

22. Suggested reading Birmingham and Solihull Mental Health NHS Foundation Trust Gordon, G.H. “The criminal law of Scotland’ Third Edition, Volume 1, (2000) Scottish Universities Law Institute, (W Green, Edinburgh). Walker,N. ‘Crime and Insanity in England- The Historical Perspective’ (1967) Edinburgh University Press ‘Insanity and Diminished Responsibility’ [2004] Scottish Law Commission , 195 (Report) (15 July 2004) Mackay, R.D. ‘The abnormality of mind factor in diminished responsibility’ Criminal Law Review: 117 (1999). Dell, S. ‘Murder into manslaughter’ (1984) , Oxford University Press. R. Bluglass, Psychiatry, the law and the offender’ (Institute of the study and treatment of delinquency, London, 1980). R D Mackay, ‘The Diminished Responsibility Plea in Operation - An Empirical Study’ 2004 Law Commission ‘Partial Defences to Murder; Final report’. Law Commission No. 290, TSO, London Mitchell, B. ‘Putting diminished responsibility law into practice: a forensic psychiatry perspective’ The Journal of Forensic Psychiatry, Vol1, No.3, December 1997. E Griew, ‘Reducing Murder to Manslaughter: whose job? (1986) 12 Journal of Medical Ethics 18 Gostin, L., Bartlett,P, Fennell, P., McHale, J., Mackay, R. ‘Principles of Mental Health Law and Policy’ (2010) Oxford University Press.,