The Law of Insanity and Diminished Responsibility in Criminal Law versus the Meaning of Insanity within the Medical Profession: an inevitable conflict?

• Date: 01 January 2007

The Law of Insanity and Diminished

Responsibility in Criminal Law versus the

Meaning of Insanity within the Medical

Profession: an inevitable conf‌lict?

CLODAGH MARRY*

It is axiomatic that the legal and medical professions are two distinct

disciplines, each founded upon particular beliefs and assertions which their

respective fields seek to uphold. The law has always been concerned with

punishing wrongdoers in order to protect society from the destruction and

utter lawlessness that would otherwise prevail. People who disrespect the

law deserve to be punished for their wrongful conduct because, as autono-

mous individuals, they freely choose to act as they do. Insane people have

long been exempt from such legal retribution because the law recognises

their mind is infected with some mental disorder that impacts upon their

ability to decide and control. The medical profession has long endorsed this

conclusion and, in this regard, both disciplines are in agreement.

Little in this world is black and white, however, and the line between

sane and insane is seldom an easy one to draw. In this regard, psychiatry

seeks to broaden the concept of madness in the courtroom to encompass

cases in which the defendant’s mind is only partially affected by a mental

illness. The legal profession, however, view such persons as sufficiently

loaded with “sane” elements so that it is just to attribute to the accused

responsibility for the criminal acts in question. While individual cases may

potentially be satisfactorily dealt with on the merits with the assistance of

expert witnesses and a pragmatic attitude by the judiciary, there persists an

underlying tension between the two disciplines. This strain relates to the

concept of responsibility. Law and psychiatry retain fundamentally different

perceptions of responsibility as illustrated by their divergent approaches to

the concept of “partial insanity”.

Legislatures and, indeed, the legal profession as a whole have consistently

struggled to configure a conception of madness that can bridge these

conf‌licting views. The failed attempts throughout the 19th and 20th century

illustrate that, whatever formulation is adopted, it must be able to function

on a number of levels and must constitute a legal defence to criminal

* Clodagh Marry LLB (GCD, Dublin) LLM (UCL, London), student in the King’s Inns.