Wednesday 30 November 2011

Justice v Fairness

The preliminary psychiatric assessment of Anders Breivik, the Norwegian who has admitted killing 77 people last July, has been published to mixed reactions. As discussed in a previous post (see here) it is important for mental health service users and their families to consider these events carefully because, like it or not, the British public will draw conclusions from the case about the nature of mental illness and what should be done about it.

Some people in Norway are dismayed that he may not stand trial as he was suffering from paranoid schizophrenia. Others, including some relatives of victims, have made measured comments about it not being so important how the illness is seen legally as it is to ensure that the public is protected from him in future.

The case is perhaps most interesting to us in drawing out statements about the system in the UK and I was particularly struck by the comments from Richard Charlton, chairman of the Mental Health Lawyers Association, which relate to the points I made in my previous post on this. He reports that he has represented people who have killed other people believing they are saving them from the devil, but courts have not found them to be insane.

He explains that if the patient knew that killing was wrong, even if God told them to do it, then that's not enough to give them a defence of insanity although it might be sufficient to give them a diminished responsibility defence (which, as the term implies, still means that the person is held significantly responsible). Insanity requires a higher test, and one example he offers is somebody who throws a baby onto a fire in the belief that the baby was a piece of wood and not a baby.

When you consider this it is actually not a fair test because it can convict a person who acts from good (but deluded) intentions and therefore there but for the grace of God go many decent people who might sadly experience a serious mental illness in the future. A police officer who shoots a suspect who points a replica gun at him properly has a defence even though (i) he was deluded because there was in fact no danger and (ii) he knows that killing people is generally wrong: the point is that the police officer acted with good intentions.

The truth is that, as my late father (a lawyer) told me years ago, the justice system is not really fair at all in spite of the rhetoric of some high-minded lawyers and philosophers. In practice justice is a compromise between fairness and expediency - the latter being based on what politicians believe the public will bear. And politicians don't think that the public will tolerate not holding people responsible for their actions even though in practice they had no control or realistic choice over those actions.

The consequence is that patients are blamed for actions over which they had no control whereas they might have been detained for reasons of public protection but at least meanwhile been allowed to establish their innocence by reason of insanity and thereby gained some compassion from society.

This isn't going to change in a hurry but we must be prepared to engage in thoughtful debate. It may be said that following events like those in Norway isn't the best moment to have that debate but I'm afraid the debate is happening as I write, in the British media and in pubs and clubs up and down the country.