Daily Times

The relationship between psychiatric illness and criminality has been the topic of intense debate and scrutiny in the recent past in light of the Noor Mukadam murder case. While the renewed focus and media attention on the importance of mental health in the aftermath of such tragedies is a positive development, the relationship between mental illness and criminality is too often conflated. The popular belief is that people with mental illness are more prone to commit acts of violence and aggression. The public perception of psychiatric patients as dangerous individuals is often rooted in the portrayal of criminals in the media as “crazy” individuals.

Criminal liability assumes that the offender is to blame for his criminal behaviour because he had freedom of action and the possibility not to break the law. Reversely, a very prominent principle of criminal law is that a person cannot be punished for an offense if he is not to blame for what he did: no punishment without blame (nulla poena sine culpa). Usually, it is considered as an exception not to hold a person criminally responsible if he committed an offense. This exceptional circumstance may be rooted in a mental disorder that influenced the perpetration of the crime in such a way that the judge cannot hold the offender liable. In fact, there are very different ways of substantiating insanity in domestic criminal law systems.

One of the basic questions regarding evaluations of defendants concerns the question of who should establish “true mental disorder,” the judge or the forensic psychiatrist? The question of who should decide about the presence of a mental illness is not new, in fact, there has been a longstanding and widespread view that psychiatric testimony is more likely than other evidence to intrude into the jury’s realm. This is especially relevant in the presence of a mental illness, diagnosed by the forensic psychiatrist since he can determine insanity and the courts can rely on the expert’s advice when deciding about mental abnormality.

The public perception of psychiatric patients as dangerous individuals is often rooted in the media portrayal of criminals as “crazy” individuals.

Legal insanity is a peculiar element of criminal law because it brings together two very different disciplines: psychiatry and psychology on the one hand and the law on the other. We conclude that it is crucial-for instance, in terms of legal certainty of (potential) defendants-to clearly distinguish between the responsibilities of the forensic psychiatrist/ expert on the one hand and the court on the other.

Establishing the presence of a mental illness is an expert’s responsibility, which can have far-reaching consequences about the decision of the court concerning the imposition of criminal sanctions. Clearly, if the experts disagree, the court has to make a final judgment, but also within the boundaries of the objective medical expertise presented to the court. One-point t0 emphasize is that the defendant should be able to challenge the court’s decision, and therefore the way in which a mental illness is established should be transparent. The ECtHR (European Commission to Human Rights) has provided a valuable legal framework in this respect, relevant to all legal systems falling under its jurisdiction. It is crucial that legal decisions about a defendant’s illness are founded on the right grounds, in particular where they have far-reaching legal consequences.

Courts across the country are rightly addressing the growing number of individuals with serious mental illness on remand or in jails and the complex issues they present to the courts. The counsel for Zahir Zakir Jaffer, the primary accused in the Noor Mukadam murder case has filed an application in an Islamabad Court seeking the constitution of a medical board to determine his mental state. Firstly, any effort to establish whether the accused is suffering from severe mental disorder by the court must involve all affected players from the beginning. Without such collaboration, implementation is unlikely to be successful.

Secondly, due process must be kept in mind. Because of their illness, some individuals may lack the capacity to make the decision to participate in a court trial. It is crucial that representation is provided to ensure that mentally ill defendants fully understand the consequences of their options. Due process also requires that any prison transfer for treatment ordered be appropriate to the individual’s illness.

Most importantly, appropriate and accessible forensic mental health services are crucial to the fair court proceedings of a mentally disordered individual. A broad range of forensic mental health and social services must be available or developed in the community. Service gaps must be identified and filled. These objectives may require the cultivation of new resources and creative reallocation of existing resources.

The writer is a consultant forensic psychiatrist.