Chapter 12: Pathological Non-Responsibility

Introduction

The defence of non-responsibility, in the US, England and South Africa has traditionally depended upon the youth[1] of an accused, or whether the accused suffers from a so-called pathological mental condition. This pathological mental condition in England is known as a disease of the mind, in the US as a mental disease or defect, and in South Africa as a mental illness or defect. Where the defence of non-responsibility is due to a pathological mental condition, it is known, traditionally, as the insanity defence, now as the defence of pathological incapacity. An pathological incapacity defence usually[2] results in a commitment to a mental health institution.

In England and SA, together with a few states in the US,[3] lesser claims to non-responsibility are recognised in the form of diminished responsibility. These claims, if successful, may result in a lesser conviction and sentence. For instance, in England and a few jurisdictions in the US, a successful claim of diminished responsibility would reduce a conviction from murder to manslaughter.[4] In South Africa, a successful claim of diminished responsibility permits a court to take account of this in sentencing.[5]

South Africa has gone further though. Starting in 1980, deriving from the leading case of Chretien[6], South African courts began to recognise that complete non-responsibility may be recognised in the absence of youth and mental illnesses or defect. This defence has become known as non-pathological criminal incapacity and, if successfully raised, results in an acquittal and an unconditional discharge. Non-pathological criminal incapacity may arise out of any non-pathological condition. However, it is usually based upon a claim of provocation, severe emotional stress, intoxication, or a combination of these.

The various sources of non-responsibility require analysis to extract what they mean and the work that they do. Ultimately, it must be considered whether any particular source should be required. This chapter focuses on these various sources, beginning briefly with youth, then ‘so-called’ pathological criminal incapacity, and then moving on to non-pathological criminal incapacity in the next chapter.[7]

The jurisprudence of the pathological incapacity defence in the US, England and South Africa has been driven by assassinations or attempted assassinations of Prime Ministers and Presidents. We have that in common and – to a very large extent – we have the M’Naghten rules of insanity (pathological incapacity) in common.[8]

In all jurisdictions, a pathological incapacity defence may only be claimed where some form of mental disorder/pathology may be implicated as having caused an impediment in the functioning of the individual accused or defendant.[9]

I will argue that this requirement of pathology is an (almost) meaningless obstacle placed in the way of a plea of pathological incapacity. It serves only to give covert expression to myths, false intuitions, and some valid concerns – but which are better addressed elsewhere. It may be noted that the requirement is also – to a large extent – redundant. We need to consider these concerns and identify which are valid. We then need to consider where the valid concerns may be better addressed. I will take each of these accusations in turn: that the term is (almost) meaningless; that any meaning it has is improper or unfounded; and that it is mostly redundant anyway.

Meaningless

No formal definition of mental illness or defect exists – neither in the statute[10] that governs the defence of pathological incapacity, nor in the common law.

One may expect that what is recognised as a mental disorder[11] for the purposes of the civil law would also count as a mental disorder for the purposes of the criminal law. However, this is not so. A determination of mental disorder in terms of civil law does not translate into a mental illness/defect in the criminal law.[12]

A mental disorder, as required by the criminal law, is an undefined ‘legal’ concept.[13] The Rumpff Commission explains:

A source of criticism on the part of psychiatrists is the use in the law of words like ‘insanity’, ‘mental disease’, etc. We consider these terms still to be indispensable in law. The law does not attempt to define them, but uses them to denote in a single word a particular condition of the mental faculties of a person which is important from a legal point of view.[14]

Thus, there exists no formal definition of the required threshold criteria. It is a legal concept, independent of medical or scientific considerations. We must trust that judges will know it when they see it. Off course, this is law without any rule or principle for guidance. It is an obvious source of arbitrariness and unequal treatment.

Improper or Unfounded Concerns

Despite the insistence that these concepts should go undefined, a definition of mental illness/defect[15] has crept into use in South African law.[16]

In the case of Stellmacher[17] it was held that a mental illness/defect consists in:

... a pathological disturbance of the accused’s mental capacity and not a mere temporary mental confusion which is not attributable to a mental abnormality but rather to external stimuli such as alcohol, drugs or provocation.[18]

The Stellmacher definition has been recognised as requiring that a mental illness/defect must be a pathology and it must be of endogenous origin.[19]

Popular parlance distinguishes non-pathological from pathological (mental illness/defect) incapacity on the basis that non-pathological incapacity is temporary - hence the expression ‘temporary insanity’. However, our law has held the duration of the disorder not to be a relevant consideration in respect of whether a condition constitutes a mental illness/defect.[20] Therefore duration cannot distinguish the legal concepts of non-pathological from mental illness/defect incapacity.

Dubious Foundation

Before analysing the value of this definition, it is revealing to trace its foundation which appears to be less than sound. ‘Figure 1’ (below) is included to assist in tracing the authority for the Stellmacher requirements. The definition set out in Stellmacher has been adopted in texts on criminal law[21] and, as noted, the authority is cited as the Stellmacher case. The Stellmacher case adopted the definition out of Hiemstra’s Suid-Afrikaanse Strafproses[22] which, in turn, only offers authority for the portion of the definition requiring that the mental condition must be a pathology. In this respect Hiemstra cites the Rumpff Commission Report[23] and the Mahlinza case.[24] The Rumpff Commission Report, at the paragraph cited,[25] does not provide clear authority for the requirement of pathology, since its emphasis is on the need for a judge to obtain the assistance of a psychologist and psychiatrist in determining whether an accused suffered from a pathology. However, it is in the introduction that the Rumpff Commission appears to assume its definition[26] of mental illness or defect, there referred to as mental derangement, including the element of pathology.

 

Figure 1: Stellmacher Requirements

As for the authority that may be gleaned from the judgment in the Mahlinza case - this was delivered by Rumpff JA[27] at the same time that the learned judge chaired the Rumpff Commission. The Commission cites no authority for the definition of mental illness/defect it adopted and appears to have merely assumed a definition.

‘We have taken the expression in the terms of reference ‘persons …suffering from some form of mental derangement’ to mean persons suffering from a morbid or pathological mental disorder, i.e. some form of mental disease or permanent mental defect. Persons whose mental faculties have been temporarily impaired, for instance by drugs, are therefore not deemed to be included under the terms of reference.’ [28]

That the definition is an assumption appears to be declared by the words ‘[w]e have taken the expression in the terms of reference ‘persons …suffering from some form of mental derangement’ to mean ...’.[29]

The part of the judgement in Mahlinza referred to by Hiemstra notes only, in respect of the requirement of pathology, that it is unwise to attempt to define ‘insanity’, except that while the cause of the mental disorder is unimportant, the disorder must be pathological.[30] In this respect one is referred to Holiday[31] and an extract from the judgement of Kemp,[32] to the effect that the law is not concerned with the cause or origin of a disorder, but with the state of mind of the accused. This certainly does not stipulate that ‘pathology’ is a requirement for a mental illness/defect. Furthermore, further analysis of Devlin J’s judgement in Kemp reveals that the judge regards any condition which caused a defect of reason to be a disease of the mind simply because it caused a defect of reason. The decision in Holiday, at the point cited, also does not specify pathology as a criterion, but instead, contrary to the Stellmacher/Hiemstra definition, states that the cause of the mental disorder is irrelevant to the extentthat even voluntary alcohol consumption would not disqualify a disorder from being a mental illness/defect for the purpose of a pathological incapacity defence.[33] Thus the judgement in Mahlinza provides, in my view, an unsound foundation for the requirement of pathology.

What is particularly noticeable is the similarity between the Rumpff Commission definition and the definition being adopted presently from Stellmacher.

Stellmacher

Rumpff Commission

... a pathological disturbance of the accused’s mental capacity and not a mere temporary mental confusion ...

a morbid or pathological mental disorder, i.e. some form of mental disease or permanent mental defect.

 ... and not a mere temporary mental confusion which is not attributable to a mental abnormality but rather to external stimuli such as alcohol, drugs or provocation.

Persons whose mental faculties have been temporarily impaired, for instance by drugs, are therefore not deemed to be included under the terms of reference.

 

The similarity suggests that the Stellmacher definition is little more than a restatement of the unfounded Rumpff commission definition.

Thus the basis for the requirement of pathology is unsound or a mere assumption, and the requirement of an endogenous origin is ultimately contradicted by the authority cited (particularly Holiday), or, at best, completely unfounded.

Pathology

Even if one were to engage with the concept of pathology as a requirement, it is unfortunately little more than a distraction. At first it begs the question: what is a pathology? Neither the Oxford dictionary definition, the law, nor social sciences have any straightforward answer to this question.

In English

The Oxford Dictionary of English[34] defines a pathology as a disease, which is in turn defined as a disorder. A disorder is defined as an illness. Thus an illness or defect must be a pathology, which is a disease, which is a disorder, which is an illness. Ultimately the definition is circular: an illness is a pathology, which is an illness.

In Law

It is even arguable that the reference to pathology in the Stellmacher definition was really a reference to the origin of the disorder. This may be noted from Burchell’s discussion of the criterion of ‘pathology’: that a disorder is not a pathology where it resulted from ‘socio-cultural patterns of behaviour that have been learned or taught ....’[35]

He continues: It would seem to follow that defect of reason caused simply by youth, stupidity or cultural immaturity is not insanity since it is not a result of disease but some social, cultural or temporal condition.[36]

The real concern appears to be with the source of the disorder, and in particular, that it should not be recognised where it arose from environmental (cultural, social, economic) factors. As will be discussed, there appears no basis for this bias.[37]

In the Social Sciences

In the social sciences, the concept of ‘pathology’ (known as psychopathology) is rather controversial.[38] The main difficulty is that there is no universally accepted norm in respect of psychological functioning. Carson, Butcher, and Mineka observe the following:

... But what is the norm? In the case of physical illness, the norm is the structural and functional integrity of the body as a workable biological system; here, the boundary lines between normality and pathology are usually (but not always) clear. For psychological disorder, however, we have no ideal, or even universally ‘normal,’ model of human mental and behavioral functioning to use as a base of comparison. Thus we find considerable confusion and disagreement as to just what is or is not normal, a confusion aggravated by changing values and expectations in society at large.[39]

The problem is that societal norms are relative. What is regarded as abnormal in one culture may well be regarded as normal in another.[40] Further, what is normal for one gender or age group may be abnormal for another.[41] Thus deviance in itself does not necessarily indicate psychopathology.[42]

The problem is complex. While there must be real concerns not to ‘over-pathologise’ behaviours within particular cultures and genders, there must be equal concern not to ‘under-pathologise’ behaviour. Just because particular behaviour may be typical or usual in a culture or gender, does not mean that it represents healthy psychological functioning.[43] The question in this context becomes what behaviour or mental phenomena to regard as abnormal that would otherwise be regarded as normal. For South Africa, a heteronymous society, and for criminal responsibility in particular, the realisation that psychopathology is a relative notion is clearly imperative.

Deviance, Dysfunction, Distress and Danger

Beyond deviance, a variety of other indicators have been suggested as indicating the presence of a psychopathology.[44] These indicators include dysfunction, distress, and danger.[45] They are regarded, together with deviance, as merely suggestive of the presence of a psychopathology. This is because each of these indicators is itself relative. A state of distress may signify an appreciation of the human condition. It is distressing that we all will die one day. Many, if not most people, face social and financial hardships. Regarding danger, as we live our lives, we constantly pose danger to others and ourselves. Driving or being driven, swimming, and exposing oneself to the sun are all mundane activities that are dangerous. Regarding dysfunction, a similar point may be made because of the difficulty in establishing an ideal standard for psychological functioning. However, if one were able to stipulate what that standard was, the concept of dysfunction would no longer be relative.

Further, psychopathologists do not agree on the significance of the indicators. For example, Comer[46] refers to the four indicators discussed above as significant, while the WHO[47] and Holmes[48] do not include danger in their list of indicators. Nevid, Rathus, and Greene[49] consider as significant, in addition to the original four discussed, the indicator that ‘perception or interpretation of reality is faulty’.[50] The DSM[51] does not include deviance as an express criterion or basis for the recognition of a disorder.[52] While for Zimmerman and Spitzer deviance seems central.[53] The significance of danger appears to have changed for the APA from the previous edition of the DSM where it was significant, to a position under the DSM-5, where it is not.[54]

As Comer comments after considering the value of the indicators discussed:

Efforts to define psychological abnormality typically raise as many questions as they answer. Ultimately, a society selects the general criteria for defining abnormality and then uses those criteria to judge particular cases.[55]

Definitions of psychopathology are plagued therefore by disagreement and relativity. Disagreement in respect of what may indicate its presence. Relativity in that each definition is based on a different standard or perspective.

Of the four factors, dysfunction does appear to have gained prominance. Kendall and Hammen[56] regard the indicator of dysfunction as the only significant factor for diagnosis. Wakefield developed a prominent[57] definition of mental disorder, as follows:

I argue that a disorder is a harmful dysfunction, wherein harmful is a value term based on social norms, and dysfunction is a scientific term referring to the failure of a mental mechanism to perform a natural function for which it was designed by evolution. Thus, the concept of disorder combines value and scientific components.[58]

Significantly, the latest American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders definition of mental disorder gives prominence to the concept of dysfunction.[59] I will argue that this prominence is not misplaced and that it is precisely what is in issue in questions of criminal responsibility.

Diagnostic and Statistical Manual of Mental Disorders

The Diagnostic and Statistical Manual of Mental Disorders (DSM)[60] represents the consensus that does exist on a definition of psychopathology and specific mental disorders to the extent that expert professionals agree:

[Expert professionals’ rules] are stated in the Diagnostic and Statistical Manual, 4th Edition (called DSM-IV), which is the most widely accepted system in the United States and around the world for classifying psychological problems and disorders. The World Health Organisation publishes another manual used worldwide, the International Classification of Diseases (ICD), in many respects similar to the DSM.[61]

The DSM, now in its 5th edition (the DSM-5),[62] lists the disorders that have crystallised out of its definition referring to distress, dysfunction, and danger. It specifies the mental disorders that are currently generally accepted and provides for each a set of defining criteria. The criteria in the main comprise symptoms and signs. Symptoms are a patient’s subjective description of their disorder. Signs are objective observations that may be made by a diagnostician, either directly or indirectly. Diagnosis of any particular disorder requires that the diagnostician establish the presence of the specified criteria, assisted by text descriptions of the disorder or group of disorders.[63] In respect of the origin of disorders (aetiology),[64] only rarely does it comment, and even then, its approach is atheoretical.[65]

The DSM-IV TR defined mental disorder as follows:

A clinically significant behavioural or psychological syndrome or pattern that occurs in an individual and that is associated with present distress (e.g., a painful symptom) or disability (i.e., impairment in one or more important areas of functioning) or with a significantly increased risk of suffering, death, pain, disability, or an important loss of freedom. In addition, this syndrome or pattern must not be merely an expectable and culturally sanctioned response to a particular event, for example, the death of a loved one. Whatever its original cause, it must currently be considered a manifestation of a behavioural, psychological, or biological dysfunction in the individual.[66]

Mental disorder is defined in the DSM-5 as follows:

A mental disorder is a syndrome characterized by clinically significant disturbance in an individual’s cognition, emotion regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning. Mental disorders are usually associated with significant distress or disability in social, occupational, or other important activities. An expectable or culturally approved response to a common stressor or loss, such as the death of a loved one, is not a mental disorder. Socially deviant behaviour (e.g., political, religious, or sexual) and conflicts that are primarily between the individual and society are not mental disorders unless the deviance or conflict results from a dysfunction in the individual, as described above.[67]

Significantly, it should be noted that the consideration of danger has been dropped from the DSM-5, whereas under the DSM-IV-TR ‘a significantly increased risk of suffering, death, pain, disability, or an important loss of freedom’[68] was a valid basis for the recognistion of a mental disorder. The emphasis now falls on dysfunction.

Though the DSM represents consensus in the field, it is not uncontested. Various criticisms have been levelled at the DSM of which the primary one relates to the model it has adopted for diagnoses: a categorical model.[69] The model derives from the biomedical model in terms of which disorders are conceptualised as discrete phenomena.[70] These discrete phenomena may be categorised according to the underlying core of each as well as the distinct boundary that is presumed to separate one disorder from another.[71] Critics have argued that the clinical reality is that the disorders from which people actually suffer are not distinct phenomena.[72] The result is often a diagnosis of several (comorbid) disorders as if the person diagnosed has more than one disorder, instead of one disorder with features that straddle the presently accepted categories.[73] The DSM-5 now recognise this[74] and appear to offer the inclusion of ‘dimensional measures’ as, at least, a partial solution.[75] Dimensional measures are included following from the following observation:

the boundaries between many disorder “categories” are more fluid over the life course than DSM-IV recognized, and many symptoms assigned to a single disorder may occur, at varying levels of severity, in many other disorders. These findings mean that DSM, like other medical disease classifications, should accommodate ways to introduce dimensional approaches to mental disorders, including dimensions that cut across current categories.[76]

It is not clear whether these dimensional measures will be adequate to resolve the problems inherent in a categorical approach.

Another criticism of the DSM diagnostic categories is the potential reification of disorders so that they are regarded as existing in reality[77] rather than being an aid to understanding and communication.[78] A further criticism of the DSM is that it sacrificed validity (reflecting accurately a disorder) for the sake of reliability (inter-diagnostician agreement).[79] In the preface to the DSM-5 this preference is made clear:

Reliable diagnoses are essential for guiding treatment recommendations, identifying prevalence rates for mental health service planning, identifying patient groups for clinical and basic research, and documenting important public health information such as morbidity and mortality rates. As the understanding of mental disorders and their treatments has evolved, medical, scientific, and clinical professionals have focused on the character­istics of specific disorders and their implications for treatment and research.

While DSM has been the cornerstone of substantial progress in reliability, it has been well recognized by both the American Psychiatric Association (APA) and the broad scientific community working on mental disorders that past science was not mature enough to yield fully validated diagnoses—that is, to provide consistent, strong, and objective scientific validators of individual DSM disorders.[80]

This is not insignificant. To clarify, a valid measurement is accurate in the sense that it measures what it claims to measure.[81] A bathroom scale measures the mass of a person and is only a valid measure of mass if it accurately measures the mass of a person. A reliable measurement is one that is consistent. If a person’s mass has not changed, a reliable bathroom scale will show the same measurement every time. These two criteria are crucial for any worthwhile instrument. An instrument which gave preference to validity over reliability is not ideal, but at least conceivable and somewhat useful. This would be a bathroom scale that varies in its measurement notwithstanding that the subject’s mass has not changed. However, an instrument that gives preference to reliability over validity is hard to conceive and must be of questionable utility. This would be a scale that sometimes may, at best, on occasion, measure the mass of a person, on other occasions, it measures the temperature, or the speed or position of a certain unknown star. Even if this scale gave a consistent reading, it would be useless. The same arguably applies to the DSM.[82]

One must ask the question how useful a diagnosis is, upon which mental health practitioners may agree, if they cannot be sure what it is they are agreeing upon nor that such a thing even exists.

Rosenhan showed, in his now classic studies, that the diagnosis of mental disorder is prone to substantial error.[83] He conducted a study in which eight pseudo-patients (mentally healthy individuals) were presented to mental institutions as disordered. None was detected as faking. Further, he conducted another study in which a mental institution was informed that fake patients would present themselves at that institution and staff were requested to rate the likelihood that any patient presenting him or herself was a fake patient. In this study 21 per cent (41/193) of patients were rated with a high degree of confidence by at least one member of staff, to be fake patients, when actually no fake patients presented themselves.

Haysom, Strous and Vogelman remark:

If nothing else, the critics of psychiatric diagnosis have served to warn society of the potential manipulation of diagnostic labels, and of the doubt which should exist in their intrinsic heuristic value.[84]

Another significant criticism of the authority of the DSM emerges from its treatment of homosexuality as a disorder. Homosexuality was included as a mental disorder in the second edition of the DSM[85] while subsequent editions have declassified it. The point is not simply that homosexuality was categorised as a disorder, but more than that. It reveals a deep flaw in not just what is classified, but how disorders are classified and by what criteria. It reveals that socio-cultural and political factors play a role in the identification of behaviour or mental phenomena as mental disorders. The indictment is that it is not clear that the DSM or any nomenclature can ever be free of extraneous factors.

Although it is the leading attempt to define and describe mental disorders, it cannot be denied that the DSM-5 was born in controversy.[86]

Beyond the criticisms of the DSM as a diagnostic tool within psychology and psychiatry, there is yet another problem. The law does not regard the DSM as indicating which disorders should be recognised as mental illnesses or defects.[87] That is, many disorders recognised in the DSM as mental disorders (such as personality disorders[88] and kleptomania)[89] are not recognised in law as mental disorders for the purposes of an pathological incapacity plea. The Washington Supreme Court stated in 1993 that the DSM (referring then to the DSM-III-R) is an evolving and imperfect document, that it is not sacrosanct, and is even in part a political document.[90]

The APA itself warns, in the preface of the DSM, against unconsidered adoption of the various disorders described for forensic purposes. Under the disciusuion relating to the defeinition of a mental disorder, the following appears:

This definition of mental disorder was developed for clinical, public health, and research purposes. Additional information is usually required beyond that contained in the DSM-5 diagnostic criteria in order to make legal judgments on such issues as criminal responsibility, eligibility for disability compensation, and competency (see "Cautionary Statement for Forensic Use of DSM-5" elsewhere in this manual). [91]

The cautionary statement referred to, appears under the heading “Cautionary Statement for Forensic Use of DSV-5” and is repeated at length here due to its importance:

Although the DSM-5 diagnostic criteria and text are primarily designed to assist clinicians in conducting clinical assessment, case formulation, and treatment planning, DSM-5 is also used as a reference for the courts and attorneys in assessing the forensic consequences of mental disorders. As a result, it is important to note that the definition of mental disorder included in DSM-5 was developed to meet the needs of clinicians, public health professionals, and research investigators rather than all of the technical needs of the courts and legal professionals. It is also important to note that DSM-5 does not provide treatment guidelines for any given disorder.

When used appropriately, diagnoses and diagnostic information can assist legal decision makers in their determinations. For example, when the presence of a mental disorder is the predicate for a subsequent legal determination (e.g., involuntary civil commitment), the use of an established system of diagnosis enhances the value and reliability of the determination. By providing a compendium based on a review of the pertinent clinical and research literature, DSM-5 may facilitate legal decision makers' understanding of the relevant characteristics of mental disorders. The literature related to diagnoses also serves as a check on ungrounded speculation about mental disorders and about the functioning of a particular individual. Finally, diagnostic information about longitudinal course may improve decision making when the legal issue concerns an individual's mental functioning at a past or future point in time.

However, the use of DSM-5 should be informed by an awareness of the risks and limitations of its use in forensic settings. When DSM-5 categories, criteria, and textual descriptions are employed for forensic purposes, there is a risk that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis. In most situations, the clinical diagnosis of a DSM-5 mental disorder such as intellectual disability (intellectual developmental disorder), schizophrenia, major neurocognitive disorder, gambling disorder, or pedophilic disorder does not imply that an individual with such a condition meets legal criteria for the presence of a mental disorder or a specified legal standard (e.g., for competence, criminal responsibility, or disability). For the latter, additional information is usually required beyond that contained in the DSM-5 diagnosis, which might include information about the individual's functional impairments and how these impairments affect the particular abilities in question. It is precisely because impairments, abilities, and disabilities vary widely within each diagnostic category that assignment of a particular diagnosis does not imply a specific level of impairment or disability.

Use of DSM-5 to assess for the presence of a mental disorder by nonclinical, nonmedical, or otherwise insufficiently trained individuals is not advised. Nonclinical decision makers should also be cautioned that a diagnosis does not carry any necessary implications regarding the etiology or causes of the individual's mental disorder or the individual's degree of control over behaviors that may be associated with the disorder. Even when diminished control over one's behavior is a feature of the disorder, having the diagnosis in itself does not demonstrate that a particular individual is (or was) unable to control his or her behavior at a particular time.[92]

Nevertheless, social scientists and forensic experts find themselves in a bind. To what shall they refer to inform whether to label a condition a disorder or not, or in particular, a mental illness or defect.

It is worth setting this caution against what – according to Comer – it is that a diagnosis offers:

When clinicians decide, through diagnosis, that a client's pattern of dysfunction reflects a particular disorder, they are saying that the pattern is basically the same as one that has been displayed by many other people, has been investigated in a variety of studies, and perhaps has responded to particular forms of treatment. They can then apply what is generally known about the disorder to the particular individual they are trying to help. They can, for example, better predict the future course of the person's problem and the treatments that are likely to be helpful.[93]

However, the caution appears to contradict this directly. Careful analysis of the forensic caution reveals that a diagnosis discloses nothing. It does not imply that the person diagnosed manifests any particular feature associated with the diagnosis, nor does it imply that the person suffered any particular impediment or disability, even if the central feature of the disorder is the particular impediment or inability in question. Ultimately, if one wants to know if any person suffered any particular impediment or inability at any time, an inquiry to determine that question must be done. In line with this, the argument will be made that concern with diagnosis and labelling is at best a waste of time and that if an impediment is in question, that impediment must be the focus of any enquiry.

Conclusion

The requirement that, for a pathological incapacity defence, a mental disorder must qualify as a ‘pathology’ appears therefore to be unsound or a mere assumption; to beg the question or to be circular; to really be a reference to the origin of a disorder; and ultimately, if taken as a reference to psychopathology, offers no clear uncontested criterion – except perhaps for the consideration of whether the accused could be considered ‘dysfunctional’.

I have acknowledged that the concept of dysfunction may be regarded as relative because of the difficulty in defining a standard of ideal functioning. Nevertheless, this consideration appears now to be the most prominent consideration in psychopathology – qualified by appropriate considerations of what may be considered adequate functioning for an individual within any particular context.

As suggested above however, I will argue that there is no value in determining whether, for legal purposes – at least for the criminal law, any person suffers with what may be regarded as a mental disorder, a mental illness or a mental defect. These are all meaningless labels that only serve to permit unfounded inferences.

Endogenous Origin

As indicated above, the Stellmacher[94] decision introduced the requirement that the mental disorder in question, must have arisen internally. The disorder must be of endogenous origin.[95] It would seem that the social sciences are inevitably best placed to say what is of endogenous origin.

Social Sciences

In the social sciences, the issue of causation, known as aetiology, of psychopathologies is highly contested.[96] Various models have been put forward to explain the causes of psychopathology: bio-medical, psychodynamic, humanistic-existential, behavioural, cognitive, socio-cultural and family systems. Each of these will be briefly surveyed.

It is notable that none of these models, not even the bio-medical model, requires that the (ultimate) cause of psychopathology must come from within a person.

The bio-medical model is concerned with the biological bases of psychology. Mental disorders are attributed to anatomical or neurochemical problems in the brain.[97] For this reason, it is often criticised as being reductionist.[98] Central to this model is the notion that disorders are ‘real’ phenomena that can be discovered. The model holds that in time science will develop sufficiently so that the physiological cause of all disorders will be discovered. However, even within this model there is no insistence that the (ultimate) cause of a brain problem must arise from within the person. It is well recognised that ingesting chemicals or being struck on the head may well lead to a brain disorder and, in turn, a mental disorder.

The psychodynamic model began with the work of Freud’s psychoanalytic approach. Psychoanalysis explains human personality and psychopathologies in terms of early childhood experiences and unconscious forces. Psychoanalysis proposes that pathologies are due to conflicts within one’s mind raging out of control.[99] Unresolved intrapsychic conflict ultimately results in psychopathology.[100] However, on the basis that all people experience intrapsychic conflict, Macklin[101] comments that psychoanalysis cannot clearly distinguish those who are pathological from those who are not. For psychoanalysis, everyone is to some degree, disordered.

The humanistic-existential model concerns the human potential to rise to philosophical challenges such as self-awareness, values, meaning, and choice, and to incorporate these into one’s life. From a humanist perspective, psychopathology results where individuals avoid their responsibility to fulfil their potential. From an existentialist perspective, psychopathology results where individuals fail to face their existence and give meaning to their lives.[102]

The behavioural model regards behaviour as a response to stimuli in one’s environment.[103] The probability of the repetition of specific behaviour is governed by the reinforcement of that behaviour. Thus, for the behavioural model, psychopathology results from maladaptive learning.[104]

The cognitive model is concerned with the role of thinking and information processing in explaining human behaviour.[105] The emphasis here shifts from the behavioural perspective of a direct relationship between one’s environment and its effect upon one’s mind, to recognising the impact of an individual’s thoughts.[106] Mental disorder is regarded as arising out of maladaptive thinking, irrational beliefs, and interpretations which may be traced to unexamined beliefs, faulty learning, the drawing of incorrect inferences, and failing to distinguish between imagination and reality.[107]

The socio-cultural model focuses on environmental stresses that an individual may endure.[108] Societal stress such as poverty and discrimination lead to mental disorder. The family systems model proposes that family interaction directs the development of an individual’s sense of reality and personal identity. Faulty communication or structural imbalances within a family are regarded as the cause of psychopathology.[109]

Thus, various factors have been implicated as causing mental disorder. These causes range from brain disorder, unresolved intrapsychic conflicts, failures to fulfil one’s potential or give meaning to one’s life, maladaptive learning, maladaptive thinking and irrational beliefs, to faulty communication and structural imbalances within a family. As noted though, no school of thought regards the cause of a disorder as exclusively ‘internal’ or ‘external’.    

A complicating factor is that causes may range along a spectrum from remote to more direct, proximate causes. Some, such as genetic factors, may predispose an individual, placing him/her at risk. Others represent more immediate precipitating factors such as stressors in an individual’s environment. All are factors in a causal chain, whether remote or proximate. Although some factors may be regarded as ‘external’ (meaning presumably environmental factors) they may represent precipitating factors which combine with other predisposing factors to produce a pathology. Butcher, Mineka and Hooley capture the problem well:

Although understanding the causes of abnormal behaviour is clearly a desirable goal, it is enormously difficult to achieve because human behaviour is so complex. Even the simplest of human behaviours, such as speaking or writing a word, is the product of literally thousands of prior events - only some of which are understood, and then frequently only in the vaguest of ways. Understanding a person’s life in causal terms, even an utterly ‘adaptive’ life, is an incomplete project of enormous magnitude; when the life is a maladaptive one, we can assume the task is even more difficult.[110]

In the social sciences, psychopathologists appear to regard the problem of the origin of any mental condition as a complex interaction of factors[111] and certainly do not seem to be prepared to regard any condition as caused exclusively by ‘internal’ or ‘external’ factors.

In Law

The English law requires, for recognition of a ‘disease of the mind’, that the cause thereof must be ‘internal’.[112] Analysis of some prominent English cases reveals the difficulty of adopting this criterion.

In the case of Quick,[113] the court held that the accused’s condition, hypoglycaemia, was transitory and caused by the external condition of medication. However, the accused had used insulin to treat his diabetes. The problem is this: the insulin may be regarded as ‘external’, but his need for it, his diabetes, was ‘internal’. Wasik,[114] apparently appreciating the complexity of causation, raises the question of what the outcome would have been had the diabetes, as an ‘internal’ factor, been regarded as the cause. He concludes that pathological incapacity would have been the only defence, implying that Quick’s condition would then have amounted to a disease of the mind.

In the leading case of R v Sullivan[115] causation is said not to matter.

If the effect of a disease is to impair these faculties so severely as to have either of the consequences referred to in the latter part of the rules, it matters not whether the aetiology of the impairment is organic, as in epilepsy, or functional, or whether the impairment itself is permanent or is transient and intermittent, provided that it subsisted at the time of commission of the act.[116]

However, somewhat perplexingly, it is also stated at another place that it does matter if the cause is external. It is not a disease of the mind if the ‘impairment ... results from some external physical factor such as a blow on the head causing concussion ....’[117]

In 1991, on the reasoning that an internal cause indicates a disease of the mind, the court in R v Burgess[118] found a somnambulist (sleepwalker) to be not guilty by reason of pathological incapacity holding sleepwalking to be a disease of the mind due to its endogenous origin (and tendency to recur).[119]

Some of the conditions recognised in South African law as constituting mental illnesses/defects do not comply with the requirement of endogenous source. Schizophrenia, which is legally accepted as a ‘mental illness’[120] is regarded, within psychology, as the product of environmental socio-cultural factors, psychological factors, and/or biological and genetic factors, but usually as an interaction of all these phenomena.[121] Also, ‘reactive’ depression – depression due to some external environmental event – has been recognised as a mental illness.[122]

Further, one must ask, would brain injury resulting from a motor vehicle accident be disqualified because its original is external?[123] Similarly for a blow on the head with a stick.[124] Also, what if addiction is the cause of the use of alcohol, where is the cause then?

Wasik observes that the ‘difficulty with the “external factors” doctrine is that it seems to create arbitrary distinctions’[125] while Smith, Laird, Ormerod, and Hogan state: ‘distinguishing between external and internal causes is an unsatisfactory and deficient way of addressing the true mischief – the likelihood of the danger posed by uncontrolled recurrence of the mental condition leading to a lack of capacity.’[126]

Thus, the aetiology of psychopathology does not seem to permit causal factors to be regarded as exclusively endogenous or exogenous as the law presently requires and even if it did, the requirement of endogenous source appears to be applied selectively.

There appears therefore nothing in the Stellmacher requirements of pathology and endogenous origin to validly and reliably define a mental disorder for the purposes of a pathological incapacity defence. If the real issue is dangerousness, then this must be addressed.

Dangerousness

Analysis of what ultimately drives the pathological incapacity plea appears to be the notion of dangerousness.[127]

Lord Denning in the leading English case of Bratty made it clear that dangerousness was central to the recognition of a disease of the mind:

It seems to me that any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind. At any rate it is the sort of disease for which a person should be detained in hospital rather than be given an unqualified acquittal.[128]

In McAuley’s view, ‘[t]he fact is that defendants who are abnormally susceptible to shock or stress are dangerous in a way that the normally susceptible defendant is not, and seem naturally to attract the insanity defence for that reason.’[129] As mentioned above, Smith, Laird, Ormerod, and Hogan note that where a mental condition arises from an ‘internal’ cause, it is expected to recur more likely.[130] They go on, as noted above, to criticise the internal/external bases of distinguishing disorders since it obscures the true mischief – the likelihood of danger posed by uncontrolled recurrence of the mental condition.’[131] Clarkson endorses the view that dangerousness is the true mischief: ‘… illness could cause him to act in the same way again; he is thus regarded as potentially dangerous and perhaps in need of restraint. … The defendant is potentially dangerous and it is important that the courts retain the power to exercise control (for example, hospitalisation) over him. The pathological incapacity verdict triggers this power of control.[132]

The American Law Institute holds the view that the pathological incapacity plea offers the advantage that it may facilitate commitment when the individual is dangerous to the community because the condition is recurrent.[133] Denno observes: ‘… [o]ther countries, such as England, consistently classify as pathological incapacity violent conduct that may be considered sane but involuntary ... The predominant justification stems from fears about dangerousness.’[134] Milton recognises that in respect of disposal, a mandatory committal[135] to a mental institution triggered by a successful pathological incapacity defence is premised on concerns with dangerousness.[136] In Jones v Unites States[137] the United States Supreme Court endorsed the notion that pathological incapacity acquitees out to be considered dangerous.[138] The Supreme Court of Canada has held that the purpose of the pathological incapacity defence – and thus whether a disorder is a ‘disease of the mind’ or not – is the protection of society against recurrent danger.[139]

It would appear that dangerousness is the concern underlying the recognition of a mental illness or defect required for a pathological incapacity defence. It is therefore the ultimate basis for the distinction between pathological and non-pathological incapacity.

One final point requires to be observed regarding attempts to glean some definition of the mental disorder requirement – that it is, in any event, almost entirely redundant.

Redundancy

The requirement of a mental disorder is supposed to qualify and distinguish a pathological incapacity defence from any other defence of non-responsibility. A pathological incapacity defence, as indicated above,[140] requires that the accused suffered from a mental disorder which manifested in various functional impediments – was unable to know the wrongfulness of his conduct or was unable to conduct him/herself accordingly. The structure of the defence is particular. It requires that a mental disorder results in various functional impediments.[141] There is a significant tendency, however, to operate in reverse – to define the mental disorder required by reference to whether the relevant functional impediments presented.

This may be observed in the leading English case of R v Sullivan:

If the effect of a disease is to impair these faculties so severely as to have either of the consequences referred to in the latter part of the rules, it matters not whether the aetiology of the impairment is organic, as in epilepsy, or functional, or whether the impairment itself is permanent or is transient and intermittent, provided that it subsisted at the time of commission of the act.[142]

In the US this approach is also common.[143] The second part of the M’Naghten test (not knowing the nature and quality or that the deed is wrong) is relied upon to identify the first part (what constitutes a disease of the mind).

In respect of South African law, Burchell’s survey of which mental disorders qualify as a ‘mental illness or defect’ is undertaken by an explicit consideration of whether any particular condition may possibly cause the relevant functional impediments.[144] This approach is circular and renders the requirement of a mental disorder redundant.

Conclusion

Therefore it appears that the requirement of pathology is an (almost) meaningless obstacle placed in the way of a plea of pathological incapacity. It serves only to give covert expression to some myths, false intuitions, and is also – to a large extent – redundant. There are regrettably no answers here – only unanswered questions.

 


[1] The criminal responsibility of children is governed by presumptions related to their age. These presumptions may be rebuttable or irrebuttable. A rebuttable presumption is one which the prosecution can ‘rebut’ or disprove. However, an irrebuttable presumption is one that the prosecution cannot disprove. A child younger than ten is irrebuttably presumed to lack capacity, and a child between ten and fourteen is rebuttably, presumed to lack capacity (ss 7 & 11 of the Child Justice Act 75 of 2008).

[2] Though in SA the court must enquire into the appropriateness of a committal and has a discretion as to disposition, ranging from committal to unconditional release (Criminal Matters Amendment Act 68 of 1998).

[3] Including Hawaii (S v Perez, 976 P.2d 379 (Haw. 1999.)) and Oregon (S v Counts, 816 P.2d 1157 (Or. 1991)) (Joshua Dressler Understanding Criminal Law 5th ed (2009) 368 & 73-78). In S v Cacambile 2018 (1) SACR 8 (ECB) the court (Strech J with Van Zyl DJP concurring) objected to the use of the terms "psychiatric hospital" or “institution” and encouraged lawyers to use the term “mental hospital” instead. The court also objected to the use of the term “disposal” - regarding the the possible referral of an accused possible observation or detention - on the basis that it was disrespectful. It is not clear how the terms "psychiatric" or "institution" is disrespectful. Psychiatry is a recognised discipline concerned with mental health. As for “institution”, similar concerns may be expressed over the concept of “hospital”. The term “disposal” is derived from the well entrenched and apparently unremarkable use of the term “disposition” to describe the process of referring a person found to lack capacity or triability. These terms will therefore continue to be adopted in this text for the wide acceptance they enjoy and without meaning any offence. 

[4] Ibid.

[5] ‘If the court finds that the accused at the time of the commission of the act in question was criminally responsible for the act but that his capacity to appreciate the wrongfulness of the act or to act in accordance with an appreciation of the wrongfulness of the act was diminished by reason of mental illness or mental defect, the court may take the fact of such diminished responsibility into account when sentencing the accused.’ s 78(7) of the Criminal Procedure Act 51 of 1977. See S v Romer 2011 (2) SACR 153 (SCA).

[6] S v Chretien 1981 (1) SA 1097 (A).

[7] Chapter 17.

[8] In the US the attempt on the life of Ronald Reagan by John Hinckley prompted the federal government and many states to revert back to a M’Naghten style insanity defence (United States v Hinckley, 525 F. Supp. 1342 (D.D.C. 1981); W. J. Chambliss & T. F. Courtless Criminal Law, Criminology, and Criminal Justice: A Casebook. (1992) 157; P. W. Low Criminal Law Revised 1st ed (1990) 224; H. J. Steadman, M. A. McGreevy, J. P. Morrissey et al. Before and After Hinckley: Evaluating Insanity Defense Reform (1993)).

[9] I will adopt the term the South African term the ‘accused’ instead of the defendant.

[10] s78 Criminal Procedure Act 51 of 1977. See also Lirieka Meintjes-Van der Walt 'Making a muddle into a mess?: The Amendment of s78 of the Criminal Procedure Act' (2002) 15 SACJ 243.

[11] I use this term as a generic reference to the pathological mental state required under South African, English, and US law.

[12] Snyman Criminal Law 6th ed (2014) 166; See S v Mahlinza 1967 (1) SA 408 (A) 416-7; S v Mnyanda 1976 (2) SA 751 (A); cf R v Mkize 1959 (2) SA 260 (N).

[13] S v Mahlinza 1967 (1) SA 408 (A) 416: ‘suiwer jurisdiese begrippe’ (purely legal concepts, Authors’ translation).

In respect of the English position, particularly, the notion of a Disease of the Mind, see McAuley Insanity, Psychiatry and Criminal Responsibility (1993) 63; Bratty v Attorney General for Northern Ireland [1963] AC 386, [1961] 3 All ER 523 412; Clarkson Understanding Criminal Law (2005) 101 & 3; Ormerod Smith & Hogan Criminal Law (2005) 256-8; Smith, Laird, Ormerod & Hogan Smith and Hogan's Criminal Law (2015) 296ff.

In respect of the US position see Hall Criminal Law and Procedure (1992) 317; J. Dressler Understanding Criminal Law 2nd ed (1997).

[14] Rumpff Report of the Commission of Inquiry into the Responsibility of Mentally Deranged Persons and Related Matters (1967) para 9.73.

Rumpff JA adopted this view in Mahlinza: ‘By virtue of the fact that a Court has to decide each case on the facts and the psychiatric evidence, it seems to me that it is impossible - and also hazardous - to attempt to identify a general symptom whereby a mental disorder may be diagnosed as a pathological mental disorder.’ (S v Mahlinza 1967 (1) SA 408 (A) 417; translation by Burchell & Milton Cases and Materials on Criminal Law 2nd ed (1997) 272-3).

[15] Burchell distinguishes between mental illness and mental defect on the basis ‘that the terms were not used as synonyms in s 78 of the Criminal Procedure Act 1977’ (Burchell Principles of Criminal Law 5th ed (2016) 283note59). Mental defect is regarded as referring specifically to intellectual deficiency {Burchell, 2016 #855; Kruger Mental Health Law in South Africa. (1980)). However, the definition offered in Stellmacher (discussed below) refers to both mental illness and defect without distinction and it seems therefore that the definition applies to both concepts.

[16] E. Du Toit, F. J. De Jager, A. Paizes et al. Commentary on the Criminal Procedure Act Vol RS 34 (2005); Snyman Criminal Law 6th ed (2014) 165-6; Burchell Principles of Criminal Law 5th ed (2016) 276.

[17] S v Stellmacher 1983 (2) SA 181 (SWA).

[18] Ibid(translation by Jonathan Burchell & John Milton Principles of Criminal Law 2nd ed (1997) 278).

[19] Burchell & Milton Principles of Criminal Law 2nd ed (1997); Du Toit, De Jager, Paizes, Skeen & van der Merwe Commentary on the Criminal Procedure Act Vol RS 34 (2005); Johann Kriegler & Albert Kruger Suid-Afrikaanse Strafproses 6 ed (2002) 215; Snyman Criminal Law 6th ed (2014) 165; Burchell Principles of Criminal Law 5th ed (2016) 280&2. There is some contradiction though in the demand that a mental illness/defect be of endogenous origin, and yet that the cause of it ‘does [not] matter’ (ibid 281).

[20] S v Mahlinza 1967 (1) SA 408 (A) 417; S v Campher 1987 (1) SA 940 (A) 965; S v Laubscher 1988 (1) SA 163 (A) 167; R v Holliday 250. In respect of the English law, see R v Sullivan [1984] AC 156, [1983] 2 All ER 673 172.

[21] Previously in Burchell & Milton Principles of Criminal Law 2nd ed (1997); C. R. Snyman Criminal Law 3 ed (1995); J. C. Kriegler Heimstra's Suid-Afrikaanse Strafproses 5 ed (1993)and now in Snyman Criminal Law 6th ed (2014) 166; Du Toit, De Jager, Paizes, Skeen & van der Merwe Commentary on the Criminal Procedure Act Vol RS 34 (2005); Kriegler & Kruger Suid-Afrikaanse Strafproses 6 ed (2002); Burchell Principles of Criminal Law 5th ed (2016) 280-1.

[22] V G Heimstra Suid-Afrikaanse Strafproses 3rd ed (1981) 174.

[23] Rumpff Report of the Commission of Inquiry into the Responsibility of Mentally Deranged Persons and Related Matters (1967) para 9.4.

[24] S v Mahlinza (1) SA 408 (A).

[25] ‘When the question of insanity or mental disease arises, i.e. of any pathological disturbance of the mental faculties, the judge has to be assisted by the psychologist and the psychiatrist.’ (Rumpff Report of the Commission of Inquiry into the Responsibility of Mentally Deranged Persons and Related Matters (1967) para 9.4).

[26] Discussed below – see on page 132.

[27] Beyers JA and Ogilvie Thompson JA concurring.

[28] Rumpff Report of the Commission of Inquiry into the Responsibility of Mentally Deranged Persons and Related Matters (1967) 1.

[29] Ibid.

[30] S v Mahlinza 1967 (1) SA 408 (A) 418.

[31] R v Holliday 1924 AD 250 257.

[32] Devlin J framed his conception of a disease of the mind as follows:

‘It does not matter, for the purposes of the law, whether the defect of reason is due to a degeneration of the brain or to some other form of mental derangement. That may be a matter of importance medically, but it is of no importance to the law, which merely has to consider the state of mind in which the accused is, not how he got there....

The law is not concerned with the brain but with the mind, in the sense that ‘mind’ is ordinarily used, the mental faculties of reason, memory and understanding. ... In my judgment the condition of the brain is irrelevant and so is the question of whether the condition of the mind is curable or incurable, transitory or permanent. There is no warranty for introducing those considerations into the definition in the McNaghten Rules. Temporary insanity is sufficient to satisfy them.

Hardening of the arteries is a disease which is shown on the evidence to be capable of affecting the mind in such a way as to cause a defect, temporarily or permanently, of its reasoning, understanding and so on, and so is in my judgment a disease of the mind which comes within the meaning of the Rules.’ (R v Kemp [1957] 1 QB 399 at 407; SHC 18 408)

[33] R v Holliday 1924 AD 250 257. The court was apparently unanimous on this point, Kotzé JA delivering a concurring judgement (see ibid 259-60).

[34] "Oxford Dictionary of English." Oxford University Press, 2003.

[35] Burchell Principles of Criminal Law 5th ed (2016) 281.

[36] Ibid. It must be observed that the term ‘defect of reason’ forms part of the English law under the M’Naghten rules and is not required under South African Law.

[37] See 0Endogenous Originon page 148ff.

[38] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders: Text Revision 4 TR ed (2000) xxx; World Health Organisation The ICD-10 Classification of Mental and Behavioural Disorders: Clinical Descriptions and Diagnostic Guidelines (1992); Ann M. Kring, Sheri L. Johnson, Gerald C. Davison et al. Abnormal Psychology 11th ed (2010); Mark Zimmerman & Robert L. Spitzer 'Classification in Psychiatry' In Kaplan and Sadock's Comprehensive Textbook of Psychiatry edited by Benjamin James Sadock, Virginia Alcott Sadock and Pedro Ruiz (2009) 1108ff; James N. Butcher, Susan Mineka & Jill M. Hooley Abnormal Psychology 12th ed (2004); American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders DSM-5 ed (2013) 20ff; Ronald J. Comer Abnormal Psychology 8th ed (2014) 2ff.

[39] R. C. Carson, J. N. Butcher & S. Mineka Abnormal Psychology and Modern Life 10th ed (1998) 6. See also Butcher, Mineka & Hooley Abnormal Psychology 12th ed (2004) 5.

[40] D.H. Barlow & V.M. Durand Abnormal Psychology: An Integrative Approach (2014) 3-4; Jeffrey S. Nevid, Spencer A. Rathus & Beverly Greene Abnormal Psychology in a Changing World 4th ed (1999) 6; American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders: Text Revision 4 TR ed (2000) xxxiii-xxxiv; American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders DSM-5 ed (2013) 14-5. The APA state: ‘The boundaries between normality and pathology vary across cultures for specific types of behaviors. Thresholds of tolerance for specific symptoms or behaviors differ across cultures, social settings, and families. Hence, the level at which an experience becomes problematic or pathological will differ. The judgment that a given behavior is abnormal and requires clinical attention depends on cultural norms that are internalized by the individual and applied by others around them, including family members and clinicians.’ (ibid 14).

[41] R Macklin 'Mental Health and Mental Illness: Some Problems and Concept Formation' In Biomedical Ethics and the Law edited by J. M. Humber and R. F. Almeder (1979) 139; American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders DSM-5 ed (2013) 13 & 5.

[42] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders: Text Revision 4 TR ed (2000) xxxi; ibid xxii; Nevid, Rathus & Greene Abnormal Psychology in a Changing World 4th ed (1999).

[43] Thomas A. Widiger & Stephanie Mullins-Sweatt 'Classification' In Handbook of Clinical Psychology, Adults edited by Michel  Hersen and Alan M. Gross (2008) 360

[44] Comer Abnormal Psychology 8th ed (2014) 2ff; Kring, Johnson, Davison & Neale Abnormal Psychology 11th ed (2010) 4-8.

[45] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders 4 ed (1994); World Health Organisation The ICD-10 Classification of Mental and Behavioural Disorders: Clinical Descriptions and Diagnostic Guidelines (1992); Comer Abnormal Psychology 8th ed (2014) 2ff.

[46] Comer Abnormal Psychology 8th ed (2014) 2ff.

[47] World Health Organisation The ICD-10 Classification of Mental and Behavioural Disorders: Clinical Descriptions and Diagnostic Guidelines (1992).

[48] D. S. Holmes Abnormal Psychology 3 ed (1997).

[49] Nevid, Rathus & Greene Abnormal Psychology in a Changing World 4th ed (1999).

[50] Ibid 6.

[51] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders 4 ed (1994); American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders: Text Revision 4 TR ed (2000) xxxi; American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders DSM-5 ed (2013) 20. See definitions on page 140.

[52] However, because the APA recognise that mental disorder is relative to culture and gender, deviance from the ‘norm’ is ultimately relied upon (American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders DSM-5 ed (2013) 14 & 5). It is clear from the DSM-5 that however much the APA may eschew reliance upon deviance from the norm as a basis for diagnosis, it is clear that it is inescapable. The APA state: ‘The symptoms in our diagnostic criteria are part of the relatively limited repertoire of human emotional responses to internal and external stresses that are generally maintained in a homeostatic balance without a disruption in normal functioning. It requires clinical training to recognize when the combination of predisposing, precipitating, perpetuating, and protective factors has resulted in a psychopathological condition in which physical signs and symptoms exceed normal ranges.’ (ibid 19). They continue: ‘ … in the absence of clear biological markers or clinically useful measurements of severity for many mental disorders, it has not been possible to completely separate normal and pathological symptom expressions contained in diagnostic criteria.’ (ibid 21)

[53] ‘In contrast to most medical disorders, mental disorders are manifested by a quantitative deviation in behavior, ideation, and emotion from a normative concept.’ (Zimmerman & Spitzer 'Classification in Psychiatry' In Kaplan and Sadock's Comprehensive Textbook of Psychiatry edited by Sadock, Sadock and Ruiz (2009) 1109).

[54] See definitions below on page 140.

[55] Emphasis added, Comer Abnormal Psychology 8th ed (2014) 5.

[56] P. Kendall & C. Hammen Abnormal Psychology (1995) 63.

[57] Andrew M. Pomerantz Clinical Psychology: Science, Practice, and Culture 3 ed (2014) 152.

[58] Jerome C. Wakefield 'The concept of mental disorder: On the boundary between biological facts and social values.' (1992) 47 American Psychologist 373.

[59] See the definition set out below on page 140.

[60] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders DSM-5 ed (2013).

[61] Kendall & Hammen Abnormal Psychology (1995) 63 original emphasis. See also Tracey-Lee Austin & Alban Burke 'Introduction' In Abnormal Psychology: A South African Perspective edited by Alban Burke (2009) 13; Pomerantz Clinical Psychology: Science, Practice, and Culture 3 ed (2014) 153.

[62] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders DSM-5 ed (2013).

[63] Butcher, Mineka & Hooley Abnormal Psychology 12th ed (2004); American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders DSM-5 ed (2013) 21.

[64] Aetiology is a technical term used in psychopathology to refer to the source or cause of, or process giving rise to, a disorder.

[65] Butcher, Mineka & Hooley Abnormal Psychology 12th ed (2004) 7. Post Traumatic Stress Disorder (PTSD), is the notable exception (Richard J. McNally 'Posttraumatic Stress Disorder' In Kaplan and Sadock's Comprehensive Textbook of Psychiatry edited by Benjamin James Sadock, Virginia Alcott Sadock and Pedro Ruiz (2009) 2650). The DSM postulates that the cause of PTSD is the experience of an extraordinary trauma (American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders 4 ed (1994); American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders: Text Revision 4 TR ed (2000) 463 & 7). The DSM-5 is however, to some extent, organised on the basis of apparently shared aetiology (A. Burke Abnormal Psychology: A South African perspective (2012) 19).

[66] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders: Text Revision 4 TR ed (2000) xxxi.

[67] Emphasis added; American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders DSM-5 ed (2013) 20.

[68] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders: Text Revision 4 TR ed (2000) xxxi.

[69] Ibid.

[70] Pomerantz observes: '... the DSM reflects a medical model of psychopathology in which each disorder is an entity defined categorically and features a list of specific symptoms'. (Pomerantz Clinical Psychology: Science, Practice, and Culture 3 ed (2014) 154)

[71] Butcher, Mineka & Hooley Abnormal Psychology 12th ed (2004) 130.

[72] Ibid.

[73] Ibid; Barlow & Durand Abnormal Psychology: An Integrative Approach (2014) 92. The possibility of the diagnosis of co-morbid disorders is clearly contemplated by the APA in the DSM-5 (American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders DSM-5 ed (2013) 21).

[74] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders DSM-5 ed (2013) 5-6

[75] Ibid 5

[76] Ibid

[77] This perspective is reinforced in the DSM-5 where it is noted that ‘[a different (dimensional)] approach should permit a more accurate description of patient presentations and increase the validity of a diagnosis (i.e., the degree to which diagnostic criteria reflect the comprehensive manifestation of an underlying psychopathological disorder). (Emphasis added; ibid)

[78] Barlow & Durand Abnormal Psychology: An Integrative Approach (2014) 92. Lewis describes how ‘[she] had to fit what [she] saw into the models [she] had been taught.’ (Dorothy Otnow Lewis Guilty by Reason of Insanity: Inside the Minds of Killers ... (1998) 135).

[79] Barlow & Durand Abnormal Psychology: An Integrative Approach (2014) 92.

[80] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders DSM-5 ed (2013) 5. The emphasis on reliability as opposed to validity is apparent throughout the preface, such as: “New diagnoses and disorder subtypes and specifiers were subject to additional stipulations, such as demonstration of reliability (i.e., the degree to which two clinicians could independently arrive at the same diagnosis for a given patient). Disorders with low clinical utility and weak validity were considered for deletion (Emphasis added; ibid 7ff). Notably, a disorder was only considered for deletion if it was both low in clinical utility and validity. Thus, a disorder which was weak in validity would be retained if it was considered clinically useful. Field trials were designed to improve on reliability while validity will be attended to in future: ‘It is anticipated that future clinical and basic research studies will focus on the validity of the revised categorical diagnostic criteria and the underlying dimensional features of these disorders …’ (ibid 7-8)

[81] Comer Abnormal Psychology 8th ed (2014) 84.

[82] Burke Abnormal Psychology: A South African perspective (2012) 30.

[83] D. L. Rosenham 'On Being Sane in Insane Places' (1973) 179.

[84] N. Haysom, M. Strous & L. Vogelman 'The Mad Mrs Rochester' Revisited: The Involuntary Confinement of the Mentally Ill in South Africa.' (1990) 6 South African Journal of Human Rights 358.

[85] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders 2 ed (1968).

[86] Pomerantz Clinical Psychology: Science, Practice, and Culture 3 ed (2014) 166ff.

[87] Burchell notes that only some disorders recognised in the DSM-IV qualify as mental illnesses or defects for the purposes of the insanity defence (Burchell Principles of Criminal Law 5th ed (2016) 284).

Slovenko remarks: ‘… the DSM–in whole or in part–is useful and is a common basis for assessing accountability, but the law is not limited to it in defining mental illness.’ (Slovenko Psychiatry and Criminal Culpability (1995) 59).

[88] ‘These disorders are not a consequence of disturbance of the psychic state but rather patterns of behaviour learned during formative years’ (Burchell Principles of Criminal Law 5th ed (2016) 286). Psychopathy (Antisocial Personality Disorder) is not recognised as a disease of the mind in the US on the basis that a psychopath differs only insofar as s/he engages in repetitive antisocial or criminal acts and so only in the quantity of such conduct rather than the quality of his or her mental functioning (LaFave Criminal Law Abridged 4 ed (2003) 380citing the Report of the Royal Commission on Capital Punishment  (1953) §§394-402).

[89] Petty 'The Psychopathology Of Self-Control In The Context Of Criminal Capacity In South African Law' (unpublished Master's dissertation University of Stellenbosch 1998) 7.

[90] In re Petition of Andre Young 122 Wash.  2d 1, 857 P.2d 989 (1993).

[91] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders DSM-5 ed (2013) 20. A similar though more extensive warning appeared in the DSM-IV and DSM-IV TR (American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders 4 ed (1994) xxiii-xxiv; American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders: Text Revision 4 TR ed (2000) xxxii-xxxiii).

[92] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders DSM-5 ed (2013) 25. Again, a similar statement appeared in the DSM-IV and DSM-IV TR American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders 4 ed (1994) xxvii; American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders: Text Revision 4 TR ed (2000) xxxvii.

[93] Comer Abnormal Psychology 8th ed (2014) 99.

[94] S v Stellmacher (2) SA 181 (SWA)(translation by Burchell & Milton Principles of Criminal Law 2nd ed (1997) 278).

[95] Burchell Principles of Criminal Law 5th ed (2016) 282; Du Toit, De Jager, Paizes, Skeen & van der Merwe Commentary on the Criminal Procedure Act Vol RS 34 (2005); Kriegler & Kruger Suid-Afrikaanse Strafproses 6 ed (2002) 215; Snyman Criminal Law 6th ed (2014) 166.

As indicated above, there is some contradiction though in the demand that a mental illness/defect be of endogenous origin, and yet that the cause of it ‘does [not] matter’ (Burchell Principles of Criminal Law 5th ed (2016) 281).

[96] Comer Abnormal Psychology 8th ed (2014) 48; Butcher, Mineka & Hooley Abnormal Psychology 12th ed (2004).

[97] Comer Abnormal Psychology 8th ed (2014) 49ff.

[98] At the philosophical root of this criticism is that it seems difficult to attribute subjective sensations, such as being conscious, to objective matter. See Nagel 'What is it Like to Be A Bat' (1974) 83 Philosophical Review.

[99] Jacki Watts & Derek Hook 'Freud's psychoanalytic theory of development and personality' In Developmental Psychology edited by Jacki Watts, Kate Cockroft and Norman Duncan (2009) 62-3; S Freud The ego and the id (1923); S Freud Beyond the pleasure Principle (1920); Holmes Abnormal Psychology 3 ed (1997); W. W. Meissner 'Classical Psychoanalysis' In Kaplan and Sadock's Comprehensive Textbook of Psychiatry edited by Benjamin James Sadock, Virginia Alcott Sadock and Pedro Ruiz (2009) 788ff. In a particularly lucid explanation, Watts states: ‘Fixations, at a particular psychosexual stage, result in a particular 'tone' or thematic conflictual pathology. Evidence of fixation indicates a lack of the resolution between the press of the Id and the Ego and Superego's capacities to deal with the press of the Id at that particular psychosexual stage e.g. oral, anal, Oedipal conflicts. The strength of the ego to mediate the conflict is significant. Where psychic functioning is more primitive the Ego has aligned with the Id diminishing the functioning of the Superego. Such functioning results in psychotic states where internal reality predominates and the reality principal is compromised. When the ego and superego align then neurosis characterizes psychic functioning placing severe repression on the Id. Obsessive compulsive states would be an example. Psychopathic states are underpinned by a weak ego which is unable to mediate between the Id and the Superego. The Id impulses hold sway driven by the pleasure principle. Social morality has no meaning and as such sadism may be a source of pleasure for the Psychopath.’ (Jacki Watts Personal Communication 2 July 2011)

[100] Kendall & Hammen Abnormal Psychology (1995).

[101] Macklin 'Mental Health and Mental Illness: Some Problems and Concept Formation' In Biomedical Ethics and the Law edited by Humber and Almeder (1979) 145.

[102] Comer Abnormal Psychology 8th ed (2014) 68; Kendall & Hammen Abnormal Psychology (1995).

[103] I. G. Sarason & B. R. Sarason Abnormal Psychology: The Problem of Maladaptive Behavior 8th ed (1996).

[104] Kendall & Hammen Abnormal Psychology (1995).

[105] Nevid, Rathus & Greene Abnormal Psychology in a Changing World 4th ed (1999).

[106] D. L. Rosenhan & M. E. P. Seligman Abnormal Psychology 2nd ed (1989).

[107] Kendall & Hammen Abnormal Psychology (1995); Kring, Johnson, Davison & Neale Abnormal Psychology 11th ed (2010) 45-8; Comer Abnormal Psychology 8th ed (2014) 62ff.

[108] Comer Abnormal Psychology 8th ed (2014) 70ff.

[109] David Sue, Derald Wing Sue & Stanley Sue Understanding Abnormal Psychology 9th ed (2010) 56.

[110] Butcher, Mineka & Hooley Abnormal Psychology 12th ed (2004) 56.

[111] Barlow & Durand Abnormal Psychology: An Integrative Approach (2014) 29ff; Sue, Sue & Sue Understanding Abnormal Psychology 9th ed (2010) 34ff.

[112] D. Ormerod, J.C. Smith & B. Hogan Smith and Hogan's Criminal Law (2011) 297 and 8ff; R v Burgess [1991] 2 QB 92; R v Sullivan [1984] AC 156, [1983] 2 All ER 673; R v Quick [1973] QB 910, [1973] 3 All ER 347; Smith, Laird, Ormerod & Hogan Smith and Hogan's Criminal Law (2015) 296&338ff; R v Hennessy [1989] 2 All ER 9, CA. Claydon notes: ‘In English law the division in automatism cases between automatism and insane automatism rests, in reality, on whether the episode is deemed by the court to have an internal or external cause.’ (Lisa Claydon 'Are there lessons to be learned from a more scientific approach to mental condition defences?' (2012) 35 91)

[113] R v Quick QB 910, [1973] 3 All ER 347.

[114] M. Wasik 'Insanity, diminished responsibility and infanticide: legal aspects.' In Principles and Practice of Forensic Psychiatry edited by R. Bluglass and P. Bowden (1990) 257.

[115] R v Sullivan [1984] AC 156, [1983] 2 All ER 673.

[116] Ibid 172.

[117] Ibid 172 emphasis added.

[118] R v Burgess 2 QB 92. For Meintjes-Van der Walt this reveals the artificial meaning given to mental illness or defect for the purposes of a pathological incapacity defence. (Meintjes-Van der Walt 'Making a muddle into a mess?: The Amendment of s78 of the Criminal Procedure Act' (2002) 15 SACJ 248).

[119] Notably, in Parks the Supreme Court of Canada held that somnambulism is not rendered a disease of the mind by virtue that it may be regarded as arising internally (R. v. Parks, [1992] 2 S.C.R. 871; See Richard Card Card, Cross and Jones Criminal Law 19th ed (2010) 658). In the cases of Parks and Luedecke (R. v. Luedecke, ONCA 716 (CanLII); 236 CCC (3d) 317) the courts were far more concerned with the ‘dangerousness’ of the offender (see note 568) – discussed below under 0Dangerousnesson page 154ff.

[120] Burchell Principles of Criminal Law 5th ed (2016) 285.

[121] Ronald J. Comer Abnormal Psychology 8th ed (2013) 434.

[122] S v Kavin 1978 (2) SA 731 (W); Burchell Principles of Criminal Law 5th ed (2016) 285-6.

[123] For this insight I am indebted to Peter Jordi of the School of Law, University of the Witwatersrand, Johannesburg.

[124] Burchell states: ‘ ... a malfunctioning of the mind which is caused by a blow on the head resulting in concussion …is not an “illness” or “disease” of the mind since it is exogenous in its origin.’ (My emphasis, Burchell South African Criminal Law & Procedure: General Principles of Criminal Law 4th ed Vol 1 (2011) 288)

[125] Wasik 'Insanity, diminished responsibility and infanticide: legal aspects.' In Principles and Practice of Forensic Psychiatry edited by Bluglass and Bowden (1990) 257.

[126] Smith, Laird, Ormerod & Hogan Smith and Hogan's Criminal Law (2015) 338.

[127] I do not propose to take a view here on whether mental disorder predisposes one to be more dangerous or not. I am well aware that dangerousness is exceedingly difficult to determine and that mental disorder may not make a person more dangerous than other ‘normal’ people. My purpose here is to show that our Courts rely on this issue as a primary determinant of whether to regard someone as suffering from a mental illness/defect.

[128] Bratty v Attorney General for Northern Ireland [1963] AC 386, [1961] 3 All ER 523 412.

[129] McAuley Insanity, Psychiatry and Criminal Responsibility (1993) 77n48.

[130] Smith, Laird, Ormerod & Hogan Smith and Hogan's Criminal Law (2015) 338.

[131] Ibid 338ff.

[132] Clarkson Understanding Criminal Law (2005) 100-1.

[133] American Law Institute Model Penal Code (1985) 219-20. Denno notes of the American Law Institute: ‘Certainly, the MPC drafters emphasized concerns about recurring dangerousness as a reason why a defendant’s condition might be considered insane rather than sane but involuntary.’ (Denno 'Crime and Consciousness: Science and Involuntary Acts' (2002) 87 Minnesota Law Review n381).

[134] Denno 'Crime and Consciousness: Science and Involuntary Acts' (2002) 87 Minnesota Law Review n381.

[135] Provided for prior to the discretion granted by the Criminal Matters Amendment Act of 1998.

[136] John Milton 'Law Commission Project 89: Declaration and Detention of State Patients' (1998) 11 SACJ 228 &33.

[137] Jones v. United States 463 U.S. 354 (1983) 365.

[138] Discussed in Stephen J. Morse 'Mental Disorder and Criminal Law' (2011) 101 Journal of Criminal Law and Criminology 960.

[139] R. v. Parks, [1992] 2 S.C.R. 871. See also R. v. Luedecke, ONCA 716 (CanLII); 236 CCC (3d) 317 para 6ff.

[140] See Chapters 14 & 15.

[141] McAuley Insanity, Psychiatry and Criminal Responsibility (1993) 62.

[142] R v Sullivan [1984] AC 156, [1983] 2 All ER 673 172 emphasis added.

[143] State v. Elsea, 251 S.W.2d 650 (Mo.1952); State v. Johnson, 233 Wis. 668, 290 N.W. 159 (1940); LaFave Criminal Law Abridged 4 ed (2003) 377. See also Slovenko Psychiatry and Criminal Culpability (1995) 12; A. S. Goldstein The Insanity Defense (1967) 87.

[144] Burchell Principles of Criminal Law 5th ed (2016) 284-7.

 

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