What The Doctor Ordered: Revisiting The Relationship Between Psychiatry And The Law In The UK And Ireland

AuthorLouise Kennefick
PositionBCL, LLM candidate, UCC
Louise Kennefick*
Following decades of protracted debate, the introduction of the
Criminal Law (Insanity) Act 2006 (the ‘2006 Act’) has once again placed the
turbulent relationship between psychiatry and the law under the legal
The long anticipated arrival of the 2006 Act brought with it into Irish
law new definitions of insanity 1
and fitness to be tried2 in addition to a new
plea of diminished responsibility.3 The question of whether the accused was
suffering from a ‘mental disorder’ at the time he executed the act (or at the
time of trial in the case of fitness to be tried) is the primary focus of these
sections of the 2006 Act. Defined as including mental illness, mental
disability, dementia or any disease of the mind (apart from intoxication),4
‘mental disorder’ presents itself as a medical or psychiatric term within a
legislative setting.
The prominent positioning of ‘mental disorder’, together with the
retention of the term ‘insanity’, demonstrates that the basis of any discussion
of the 2006 Act must feature an examination of the hegemonic relationship
between the two powerhouses which vie for authority in the field of human
behaviour, namely, psychiatry and the law. In this article, I intend to analyse
the interplay between these two disciplines within the arena of ‘crime and
madness’, with a view to having a clear understanding of why the law in
Ireland is as it is, and whether or not its position is apposite.
Before commencing this examination, it is worth noting that the law
and psychiatry both have the unenviable task of dealing with that most evasive
entity, human behaviour. As a result, neither can ever achieve uniform
perfection in their conclusions. This is not to say, however, that we should
simply throw in our daggers and balances on the basis that we at least
achieved a certain level of justice in terms of the psychiatric and legal
treatment of mentally disordered offenders, but must use it to motivate
ourselves to come as close as possible to a flexible, complementary
relationship between the professions which will ultimately result in the most
appropriate treatment for the accused.
* BCL, LLM candidate, UCC.
1 See s 5 of the 2006 Act, which replaces the Criminal Lunatics Act 1800 and the Trial of
Lunacy Act 1883. If an accused person successfully pleaded the defence of insanity prior to the
inception of the 2006 Act, he or she was held to be ‘guilty but insane.’ However, the use of the
word ‘guilty’ was considered to be misleading given that the verdict results in an acquittal. See
People (DPP) v Gallagher [1991] ILRM 339.
2 See s 4 of the 2006 Act which replaces ‘fitness to plead’.
3 S 6 of the 2006 Act.
4 S 1 of the 2006 Act.

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