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Insanity and diminished capacity 6 Diagnosing Mental Illness The criteria which courts apply with respect to responsibility embody a right-from-wrong-test, which assesses the capacity to act according to the appropriate insight. The test has biological (i.e. presence of mental illness) and psychological components (i.e. impairment of cognitive and/or conative functions) and a successful defence requires the presence of both. Case example 8.1 : Depression, murder and criminal responsiblity Activity 8.5 Discuss the difference between mental illness and mental defect. In S v Kavin 1978 (2) SA 731 (W), the accused was charged with murdering his wife, daughter and son. He was also charged with the attempted murder of another daughter. His defence was that he was suffering from a mental illness which rendered him non-responsible. He was examined by three psychiatrists who concurred with a diagnosis of ‘severe reactive depression superimposed on a type of personality disorder displaying immature and unreflective behaviour’ (p. 734). Two psychiatrists opined that he was able to appreciate the wrongfulness of his act while a third was uncertain. However, all three concurred that his depressive state rendered him incapable of acting in accordance with an appreciation of wrongfulness. In this case the accused’s conative functioning was impaired by a depressive disorder. Case Exercise Read the case, along with S v Mahlinza 1967 1 SA 408 (A) (both can be accessed in the collections of law reports held by most academic libraries). Compare the arguments regarding what constitutes mental illness by focussing on the expert evidence which was led. The DSM-IV TR is a taxonomy of mental disorders The law does not provide a definition of mental illness or mental defect and therefore makes provision for expert testimony to establish this (Van Oosten, 1990). In order to make a diagnosis of mental illness, the psychologist uses a variety of tools as part of the clinical assessment process. The clinical interview provides the psychologist with the opportunity to gather salient aspects of the accused’s psychosocial history. This history-taking includes information such as the nature of the symptoms, the level of distress which is experienced, family history and occupational functioning. In addition the clinician (psychologist) may make use of measures such as psychological tests which provide objective information about the accused’s functioning. For example, personality tests will yield information regarding personality style and functioning while intelligence tests assess cognitive functioning. Collateral information (third party information) may be gathered from significant others so as to provide additional insight into the accused’s functioning in various spheres. This information may be provided by family members, work colleagues or other professionals (such as general practitioners, psychiatrists and psychologists) whom the accused has consulted. An important diagnostic tool which psychologists in South Africa use to make diagnoses, is the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV TR) 8(APA, 2000). This system classifies mental disorders in terms of their diagnostic criteria (symptoms) and provides clinicians with the information necessary to make diagnoses. For example, to make a diagnosis of Schizophrenia 4 , the clinician has to establish the presence of psychotic symptoms, the duration of these symptoms and the degree to which the 4 Schizophrenia is a psychotic disorder characterised by delusions, hallucinations, disorganised speech and disorganised or catatonic behaviour. (DSM-IV-TR, APA, 2000). Activity 8.4 What are the various tools which the psychologist may use to make a diagnosis? Psychologists diagnose mental illness and do not determine criminal responsibility
Africa 7 person’s functioning has been impaired. The DSM-IV TR (APA, 2000) provides guidelines which assist the clinician in this process. The evidence which the psychologist presents in court will therefore allude to the presence of mental illness (for example, Schizophrenia) and how this impacts on the accused’s functioning. It is important to note that the psychologist, in providing a diagnosis, is not required or able to offer an opinion on the accused’s criminal responsibility. This is a matter to be decided by the courts. As Ogilivie Thompson J A in R v Harris 1965 (2) SA 340 (A) at 365 B-C states, ... it must be borne in mind that...in the ultimate analysis, the crucial issue of the appellant’s criminal responsibility for his actions at the relevant time is a matter to be determined not by psychiatrists but by the Court itself. In determining that issue - initially the trial Court and on appeal this Court - must of necessity have regard not only to expert medical evidence but also to all the other facts of the case, including the reliability of the appellant as a witness and the nature of his proved actions throughout the relevant period’. This dictum highlights that the issue of determining criminal responsibility is a legal question while the diagnosis of mental illness is a psychological question. A diagnosis of mental illness does not automatically imply that an accused is non-responsible. Snyman (2002) says that the fact that a person has been declared mentally ill in terms of the Mental Health Act 18 of 1973, does not imply that he or she is also mentally ill in terms of s78(1) of the CPA. This is because the latter is chiefly concerned with how mental illness negates responsibility, and not with the nature of mental illness itself. For example, if a Mentally ill person is diagnosed with Schizophrenia and certified in terms of the Mental offenders are Health Act 18 of 1973, this does not automatically negate responsibility. In hospitalised for order for a successful defence to be raised, it has to be indefinite Activity 8.6 periods of time proven that the symptoms of Schizophrenia impaired What kind of psychological knowledge can the person’s cognitive and/or conative functioning. assist the court in making findings regarding mental state? Disposition of Mentally Ill Offenders Where the court accepts the defence of <strong>insanity</strong>, the accused is found not guilty and will be remanded into the care of a state psychiatric hospital for an indefinite period of time (Kruger 1999). For example, in S v Kavin 1978 (2) SA 731 (W), the court accepted the evidence that the accused’s depression impaired his conative functioning and therefore he was found not guilty of murder and attempted murder. He was remanded into the care of a state psychiatric hospital for an indefinite period, and was declared unfit to possess a firearm. In cases such as this, provision is made for the review of the patient’s progress and the hospital may recommend a discharge based on the prognosis of the illness and the danger which the patient poses to him or herself and society. This process has to be ratified by the courts, particularly where the offence has been violent (Kruger, 1980). The Insanity Defence – Controversies and Challenges The <strong>insanity</strong> defence in South Africa has not evoked the same kind of controversy as in the case of American jurisdictions. For this reason it is useful to explore some of the debates which have plagued legal and psychological
Page 1 and 2: 8 INSANITY AND DIMINISHED CAPACITY
Page 3 and 4: Africa 3 Insanity is a legally defi
Page 5: Africa 5 The jury found McNaughton
Page 9 and 10: Africa 9 distinctions are not centr
Page 11 and 12: Africa 11 episodes of sexual abuse
Page 13 and 14: Africa 13 those who have been found
Page 15 and 16: Africa 15 An example of the way in
Page 17 and 18: Africa 17 an indispensable role bec
Page 19 and 20: Africa 19 arguing that Emma cannot

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