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Mentally-ill homicide suspects must undergo psych assessment before sentencing: Psychiatrists

26 Sep 2021

 
  • Note over a third of such persons were of unsound mind when committing alleged act
  • Delay in assessment limits ability to ascertain criminal culpability
    By Ruwan Laknath Jayakody Since over one-third of suspected mentally ill persons accused of murder, culpable homicide, or of being accomplices by aiding and abetting in murder, were found to be of unsound mind at the time of committing the alleged offence, such defendants, local psychiatrists noted should be referred for psychiatric assessment sans delay, as any delay would limit the psychiatrist’s ability to express an opinion regarding their level of criminal culpability. This concern was raised by Consultant Psychiatrist N. Fernando, Senior Registrar in Forensic Psychiatry A.D. Alwis, and Registrar in Psychiatry W. Kotalawala in a brief report on the “Criminal responsibility in Sri Lanka: A descriptive study of forensic psychiatric assessments in remand prisoners charged with murder and related crimes” which was published in the Sri Lanka Journal of Psychiatry’s Third Volume’s First Issue in June 2012. Background Section 77 of the Penal Code as amended, reads thus: “Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he/she is doing what is either wrong or contrary to the law.” Hence, in Sri Lanka, being of unsound mind absolves one from being held responsible for any involvement in acts of a criminal nature. This, Fernando et al. explained, is based on the legal principle that sans criminal intent (mens rea), there is no crime, which in turn posits that the act must be voluntary and that the person committing it must possess the mental capacity to form an intent of the kind that forms the basis of the crime. When such matters come before courts and if the courts have reason to believe that a defendant is suffering from a mental illness, the courts may request psychiatrists to assess the state of mind of the defendant at the time of committing the alleged offence. This is achieved through a process of attempting to reconstruct the mental state of the accused at the time of committing the alleged offence. This is done so as to determine criminal culpability, and based on their assessment of the defendant, the psychiatrist in question may be required to provide an opinion to the courts on the legal accountability or criminal responsibility of the defendant. Therefore, as T. Hardie, S. Elcock, and R.D. Mackay noted in “Are psychiatrists affecting the legal process by answering legal questions?”, the results of the assessment and psychiatric diagnosis could have a major impact on the verdict of a trial as those psychiatrically deemed to be of unsound mind will not be held responsible for the crime. That said, there is a need to differentiate suffering from a mental illness from being of unsound mind as the mere fact of mental illness does not make one to be of unsound mind, while those of unsound mind, on the other hand, are always considered to be, clinically speaking, mentally ill. As Fernando et al. pointed out, a diagnosis of a mental illness does not always absolve a person from criminal responsibility. Murder is defined in Section 294 of the Penal Code as amended, as: “If the act by which the death is caused is done with the intention of causing death” or “if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused” or “if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death” or “if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury”. Section 296 of the Penal Code spells out the punishment for murder upon conviction to be death. Culpable homicide is defined in Section 293 of the Penal Code as amended, as: “Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he/she is likely by such act to cause death”. Section 297 of the Penal Code specifies the punishment upon conviction for culpable homicide not amounting to murder to be a maximum term of imprisonment of 20 years and a fine. The punishment for being an accomplice to murder is defined in the Penal Code as amended, under Section 300 as attempt to murder: “Whoever does any act with such intention or knowledge and under such circumstances that if he/she by that act caused death, he/she would be guilty of murder”, which upon conviction carries a maximum term of imprisonment of 10 years and a fine while if “hurt is caused to any person by such act”, it is met with a maximum term of imprisonment of 20 years and a fine. Therefore, Fernando et al. mentioned the significant impact created by the assessment of an accused charged with murder. Mental illness among suspects Hence, Fernando et al. conducted a retrospective study of patients charged with murder, culpable homicide, or of being an accomplice to murder among those from prisons who were admitted for psychiatric assessment to a Forensic Psychiatry Unit at the National Institute of Mental Health. Data were collected from court reports and clinical records. A questionnaire was used to extract data from clinical records while the clinical records of those offenders who had been transferred out of the unit and those who were still receiving treatment were included. There were 42 individuals charged with murder, culpable homicide, or of being an accomplice to murder, and among them were 38 males and four females with a mean (average) age of 40.7 years from a range of 22 to 66 years. The majority were from the Western and Southern Provinces, 13 and 11, respectively, amounting to 57.1% of the sample, followed by those in the North Western (six), Uva and Sabaragamuwa (four each), Central (two), and North Central and Northern Provinces (one each). The majority (37 – 88%) in the study population were diagnosed as having a mental illness with only five having a normal mental state and thus being declared as not having a mental illness. Among these 37, the majority (23 – 62.1%) were diagnosed with schizophrenia (affects, distorts, and interferes with the way a person thinks, perceives reality, feels, expresses and manages emotions, and acts and behaves, and makes decisions, and relates to others while also impacting their sense of self and use of language). This was followed by those who had bipolar affective disorder (characterised by wide, intense and severe mood alterations or swings, with periods of both deep, prolonged and profound depression and sad mood, and mania which is a manic, excessively elevated, abnormally happy or irritable mood, and also changes in thinking and behaviour, that may last for several months at a time); manic episodes (three) (sustained period of abnormally elevated or irritable mood); unspecified psychotic disorder (three) (experiencing symptoms of schizophrenia or other psychotic symptoms, but does not meet the full diagnostic criteria for schizophrenia or another more specific psychotic disorder); depression (two) (a mood disorder that negatively affects how one feels, the way one thinks and how one acts and behaves, and is characterised by a persistent low mood, feeling of sadness and a loss of interest in and aversion to activities); alcohol withdrawal syndrome (one) (symptoms that can occur and develop following a reduction in alcohol use after a period of excessive use); and intellectual disability (one) (problems, impairments, and limitations in general mental abilities that affect cognitive and intellectual functioning and adaptive behaviour that have an onset in childhood). Schizophrenia being found to be the common diagnosis among those charged with murder was also highlighted in a Nigerian study (Y.M. Mafullul, O.A. Ogunlesi, and O.A. Sijuwola’s “Psychiatric aspects of criminal homicide in Nigeria”) where 24% of the suspects were diagnosed with schizophrenia. Approximately one-third (13 – 30.5%-35.1%) were deemed to have been of unsound mind at the time of the alleged offence which in turn absolved them of criminal responsibility while 12 (28.5%) who had a mental illness were however found to be of sound mind and thus held responsible for the criminal act. A total of nine of the schizophrenics were deemed to be of unsound mind at the time of the alleged offence and six schizophrenics were declared to be of sound mind while there was insufficient information for the psychiatric opinion to determine the nature of criminal responsibility in the case of eight schizophrenics. It was also noted that none of those who were assessed had appeared to feign symptoms of mental illness. In the case of another approximately one-third of the patients (13 – 30.5%), an accurate and definitive opinion regarding the defendant’s criminal responsibility could not be arrived at owing to the lack of requisite and reliable information related to the offence, and also because in the majority, their mental state at the time of the alleged offence could not be reconstructed due to the delay in referring the accused for psychiatric assessment. The diagnoses of four (10.3%) were not mentioned in the reports to the courts. Despite having a mental illness at the time of committing the alleged offence, a considerable proportion of mentally ill suspects (32.4%) were deemed to be criminally responsible for murder. In the “Assessment of criminal responsibility for perpetrators of homicide: Analysis of 105 cases”, Y. Sun and J.N. Hun who retrospectively analysed 105 persons charged with homicide, found similarly that 34% were deemed to be responsible for the crime, 39% were not, and 28 (26.7%) were found to have diminished responsibility for murder. The latter state of mind of “diminished responsibility” is however not a principle recognised in our Penal Code.

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