Observations on the Insanity Defense and Involuntary Civil Commitment in Europe

• Publication year: 1984

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 7, No. 3SPRING 1984

ESSAY

Observations on the Insanity Defense and Involuntary Civil Commitment in Europe

John Q. La Fond(fn*)

In May 1983, the author participated in an interdisciplinary Law and Mental Health Delegation sponsored by the People-to-People Foundation which visited England, Sweden, Hungary, Switzerland, and France to examine, among other concerns, how their legal systems structure the insanity defense for mentally ill offenders and provide for involuntary civil commitment of the mentally ill. The delegation consisted of psychiatrists, psychologists, social workers, mental health advocates, judges, and law professors from Canada and the United States. The participants met intensively with psychiatrists, psychologists, lawyers, government officials, members of legislatures, professors, and judges in each of the countries, and visited several major mental health facilities. This article is based on presentations by, and discussions with, those experts in their respective countries.

I. Introduction

Most societies are concerned with mental illness and, in fact, formally take it into account in their legal systems in at least two important ways. First, mental illness is generally considered a significant factor in assessing the criminal responsibility of persons charged with committing crime and in determining the proper disposition of mentally ill offenders.(fn1) Second, the state, in certain situations, will deprive the mentally ill of their freedom and place them involuntarily in mental health facilities.(fn2) Observing how selected countries in western and eastern Europe take mental illness into account on these important questions provides an invaluable opportunity not only to learn how different societies solve common problems, but also to determine if there might be better ways of addressing those problems within our own society.

There are, of course, several perspectives from which one could analyze the insanity defense and involuntary civil commitment in foreign legal systems. However, the comparative perspective on which this article is based will focus on:a) how foreign legal systems formulate and administer the insanity defense; b) how the power of the state is defined to civilly commit mentally ill persons; c) who makes the important decisions and when and how they are made; and, d) what happens to offenders who are considered mentally ill and to others who are considered mentally ill and suitable for involuntary commitment.

II. The United States

In order to provide a basis of comparison and contrast, it is useful to set forth very generally the manner in which our own legal system addresses these problems.

A. The Insanity Defense

In the United States, most states make the defense of insanity available to persons charged with criminal offenses. There are two primary tests used to formulate the defense: the M'Naghten test(fn3) and the A.L.I, test.(fn4) Both tests require that the defendant must have been mentally ill at the time of the offense.

The M'Naghten defense is satisfied if, in addition to being mentally ill at the time of the offense, the defendant did not know the nature or quality of the act or that it was wrong.(fn5) This test focuses on the absence of cognitive ability as a result of mental illness. It is premised on the notion that knowledge is necessary for individual choice. Therefore, a mentally ill defendant who did not possess requisite knowledge concerning his behavior or its criminality is not a fit subject for retribution, nor is his conduct deterrable by the threat of punishment.

The A.L.I, test also requires that the defendant be mentally ill at the time of the alleged defense. In addition, it provides that if, as a result of such illness, a defendant's capacity either to know that his conduct was wrong or to conform his conduct to the requirements of the law was substantially impaired, he may then be excused from criminal responsibility. This test permits substantial impairment either in cognitive or volitional control to exculpate a criminal defendant. The philosophic premise of this formulation is that a defendant who did not know, or could not control himself even if he did know, did not choose to do wrong.

Both tests require not only that an individual was mentally ill at the time of the offense, but that the illness generated a specific type of mental incapacity which indicated that a necessary condition for personal responsibility was not present. Given such psychological impairments, most purposes of punishment would not be served by punishing this particular defendant.(fn6)

Since the presence or absence of mental illness is essential to this inquiry into criminal responsibility, our system relies heavily on the expert opinion of mental health specialists. In most cases psychiatrists or psychologists will, at the request of either the prosecution or the defense, evaluate the defendant prior to trial, and at trial give their professional expert opinion as to the mental health of the defendant at the time of the crime. As with all crucial facts relevant to criminal responsibility, however, our adversarial, due process model of criminal justice leaves the task of ultimate fact-finding to the jury (or to the judge in some cases). Thus, experts give their opinions before a jury in a court of law where their testimony is subject to rigorous confrontation and extensive cross-examination by legal counsel for the government and for the defendant.(fn7) Frequently, their opinions are contradictory and manifest pronounced disagreement among themselves.

If a criminal defendant is found not guilty by reason of insanity, he frequently is sent to a mental health institution for further evaluation to ascertain whether he is still mentally ill and dangerous.(fn8) He may be released from such an institution by the medical staff whenever it is determined that either of these conditions no longer exist.(fn9) Increasingly, though, the approval of a court is also needed.(fn10) Judicial review of continued confinement in a mental health institution is almost always available to such an individual.(fn11)

B. Involuntary Civil Commitment

In the United States, a mentally ill person can be committed involuntarily under the police power(fn12) or the parens patriae power(fn13) of the state. The police power permits the state to protect the public from harm. The parens patriae power authorizes the state to protect and care for those persons incapable of taking care of themselves. In most state mental health systems, qualified treatment personnel(fn14) can authorize involuntary admission of a mentally ill person to a mental health facility for evaluation (and sometimes for treatment) for a relatively short period of time. Within a reasonable time after such ex parte commitment, an involuntary patient is entitled to rather expansive due process protections, including representation by counsel and judicial review of his confinement.(fn15) Medical personnel may release the committee whenever they determine he is no longer subject to the state's commitment power, and courts can also order release if they independently determine that confinement is no longer justified.(fn16)

III. The Insanity Defense and Involuntary Civil Commitment in Europe

With the exception of Sweden,(fn17) all of the countries visited provide an insanity defense to criminal defendants. All formulations of the defense focus on whether the defendant was mentally ill at the time of the alleged offense, but they vary greatly on what, if any, other elements are required for a defendant to be considered legally insane. As will be seen, some countries such as England(fn18) consider mental illness to be excusing only if such illness results in specified psychological impairment. Others, such as France,(fn19) seem to consider the mere presence of mental illness a sufficient basis for excusing a defendant without regard to specific incapacitating consequences of mental illness. The countries also vary as to whether the insanity defense will be adjudicated together with all other issues bearing on criminal responsibility. For example, in England(fn20) the insanity defense is adjudicated together with other factual issues. In other countries, such as Hungary,(fn21) insanity is ascertained before issues of guilt or innocence are resolved. When the latter approach is used, criminal offenders, if found insane, are usually switched out of the criminal justice system and into the mental health system without substantial additional fact-finding in the criminal proceeding.

All five countries also have systems of involuntary civil commitment. In each country, the state is empowered to confine persons against their will in mental health facilities if they are mentally ill and either need treatment or pose a danger to themselves or to others. The mental health systems observed reflect a rather broad spectrum of substantive criteria which control entry into, and release from, the systems. They range from Switzerland's broad parens patriae power over persons who are mentally ill and need treatment,(fn22) to Hungary's emphasis on police power and the prevention of harm.(fn23)

In order to appreciate more fully the breadth and diversity of approaches to the insanity defense and...