Daily Times

The relationship between mental disability and the death penalty has always been a troubling and contentious one. It has spawned some of the most pervasive and perplexing myths in all of criminal procedure jurisprudence. The execution of those with mental illness or ‘the insane’ is clearly prohibited by international law. Virtually every country in the world prohibits the execution of people with mental illness.
It is important to emphasise that a number of mentally ill prisoners in Punjab have been executed or have been left to die in prison without treatment. In June 2015, the Lahore High Court (LHC) stayed Khizar Hayat’s execution on the basis of severe mental illness yet just a few days later the court dismissed that same petition on the basis of assertions by the jail that Khizar was fit for execution, denying the evidence of over five years of medical records that showed Khizar had schizophrenia since 2009. Sadly, Khizar’s case is not unique. Kaneezan Bibi and Munir Hussain are prisoners with known mental illnesses. Kaneezan Bibi has been held in a medical facility since 2006 on account of her severe mental illness and could also face execution. Had these patients been seen by forensic psychiatrists and allowed expert medical evidence to be shown in court there may well have been a different ruling. Although Khizar Hayat’s execution has been temporarily delayed for now, psychiatry’s ethical opposition to participation in the death penalty can play an important role in modifying the law and practice of capital punishment. Appeals to the Chief Justice (CJ) of the Supreme Court (SC) have already been passed by several associations, including the dean of psychiatry at the College of Physicians and Surgeons Pakistan.
The decisions in these cases appear, at times, internally inconsistent, self-contradictory, random and reflective of a ‘doctrinal abyss’. Most importantly, the relationship has reflected our overwhelming societal ambivalence about the extent to which we are willing to punish, to mitigate punishment of or, in some cases, to more enthusiastically punish mentally disabled criminal offenders.
The Mental Health Ordinance 2011 has been developed but not all legal and medical experts follow those standards because not all experts really have any familiarity with the field or with what the standards are. It is regrettable that the courts are also not strict enough in their criteria when accepting testimonies from psychologists or psychiatrists on a defendant’s mental disorder. It is completely unfair that mentally disordered people, who are more gullible and therefore more easily drawn by the police to confess under interrogation pressure, face a higher risk of being sentenced to death if they are not properly assessed.
The jurisprudence that has developed in this area reflects many of the same tensions that permeate our insanity defence jurisprudence, between our desire and need to punish individuals who threaten our social order, our fear and loathing of the mentally disabled individual who is factually guilty, our fear that behavioural explanations are inherently too exculpatory and our attempt to throw off the shackles of the medievalist and punitive spirit that still dominates us.
This reflects our intensified fear of ‘those’ people, fears that are exaggerated when the underlying criminal charge stems from a seemingly inexplicable act due to their mental disorder. Our fear of mentally disabled criminal offenders is thus reflected in court decisions, statutes and lawyering decisions that punish defendants for raising mental status defences that reject the notion that it is morally appropriate for mental disability to exempt some defendants from criminal responsibility.
This behaviour arises in the face of a series of High Court decisions that appear to say that the court has just the opposite expectation in a capital punishment context: it expects that evidence of mental disability is a mitigating factor that can be raised by the defendant in an effort to persuade fact-finders that he should not be put to death.
During trial, the insanity defence generally hinges on a person’s inability to distinguish right from wrong or understand the nature and quality of his act. In the context of an impending execution, insanity means you cannot rationally comprehend that you are being put to death as a consequence of the crime you committed. Despite international and national standards banning the use of capital punishment against mentally ill or intellectually disabled people, mental health professionals familiar with death penalty legality warn that prisons are full of prisoners who should instead be receiving treatment.
Competence to be executed raises serious ethical questions for psychiatrists. Does the psychiatrist not have an ethical duty to present medical evidence that mitigates criminal responsibility and ask courts to consider that the patient is fit to plead guilty or not? One can perhaps imagine a psychiatrist determining that the patient is incompetent to make such a decision because he fails to appreciate that the trial will bring about his execution.
Mentally ill people are not to be judged by the same rules as the mentally fit. Prisoners evaluated as being medically unfit for execution must undergo psychiatric treatment until their mental health is restored. Mental health professionals have an important role in implementing codes of ethics prohibiting unfair and wrong court trials of mentally disordered offenders. Ethical guidelines need to be established by the Pakistan Medical Association and the Pakistan Psychiatric Society, which recognise that an ethically responsible psychiatrist would have to steer an uncharted course between these pitfalls and the death of mentally disordered prisoners by capital punishment.
One basic principle of forensic psychiatry is that it is morally unjust to evaluate and judge mentally ill persons by the same legal rules as people who are mentally fit, punishing them for acts that are a consequence of their disorder. The function of the psychiatrist is that of providing the court with a medical answer to whether any significant psychiatric disease or mental deficiency is present. The verdict ‘guilty but insane’, that he or she is not responsible, is a legal task but it should yield protection against the imposition of a death sentence.

The writer is a professor of Psychiatry and consultant Forensic Psychiatrist in the UK. He can be contacted at fawad_shifa@yahoo.com