Mental Disorder & the Death Penalty

Mental disorder and/or capacity is a matter that is much discussed now with regard to death penalty cases, but in fact it is relevant for all criminal trial.

Mental disorder and/or capacity is now generally relevant at several stages:-

a) Whether one should be tried at all? – Competency to stand trial

b) With regard to Defences? – it can be an effective defence

c) Whether the death sentence should be carried out? [This, however, is something that is not so common in certain jurisdictions.

Below are some notes from the presentation of one of the panelist at the recent 6th World Congress Against the Death Penalty that was held in Oslo, Norway (21-23 June 2016). It may be just brief notes, but we hope that will be some food for thought…

Mental Disorder & the Death Penalty

Dr Richard Latham
Oslo – June 2016


  • The problems with categories of mental disorder
  • How consistent is psychiatric diagnosis
  • The connection between psychiatric diagnosis and legal responsibility

The fundamental problem
• The artificial dichotomy
– Sane v Insane
The best attempt at a solution
• Diagnostic categories and procedures
• DSM[Diagnostic and Statistical Manual of Mental Disorders] and ICD[International Classification of Diseases]
– But….
– Intended for patients, doctors, researchers, public health officials, politicians but not…..

  • The primary purpose of DSM-5 is to assist trained clinicians in the diagnosis of their patients’ mental disorders as part of a case formulation assessment that leads to a fully informed treatment plan for each individual
  • It is not sufficient to simply check off the symptoms in the diagnostic criteria to make a mental disorder diagnosis




  • Are there ’cases’ of psychosis?
    – Sane v Insane
    • 60000 British people
    – 50% believed in some form of thought transference between people
    – 25% believed in ghosts
  • Is psychosis a dimensional phenomenon?
    So what…
    • Life and death is a dichotomy
    • Presence or absence of mental disorder is (probably) not

How reliable is diagnosis?
• Will everyone pick up a ‘case’ (of schizophrenia)?
– Most will

  • Will two psychiatrists agree on a case?
    – Usually
  • Will cases stay cases?
    – 80-90% of diagnosed cases stay cases
    – ‘most’ cases in DSM-IV remain cases in DSM-V
    – 20% ‘drug-induced psychoses’ – schizophrenia

The implications
• Some psychiatric diagnoses have strong evidence for validity and reliability but there will be missed diagnoses, disagreement about diagnosis, a need for caution and waiting and changes in diagnosis over time.
Assessment in capital cases
• Can it ever be good enough?
– Arguably it should be an ongoing process where if there is any indication at all of any risk of any mental disorder….
– Degrees of certainty
• If psychiatry isn’t good enough to provide these answers definitively then what?
Mental disorder and legal tests
• No direct correlation between psychiatry and law
– And when there is it exposes the limits of psychiatry

  • Responsibility is not a medical construct
  • Behaviour is never attributable to a single factor
    – And it is never possible to quantify the importance of different factors
  • ‘Competency’ evaluations have the same reliability problems

A case of a different type
• Man with limited intellectual function charged with murder based on joint enterprise. Signed confession. Disagreement about degree of intellectual impairment. Cultural issues.
– What is the diagnosis?
– What is the impact on..
• Fitness to have been interviewed
• Capacity to have signed confession
• Ability to participate in proceedings
• Responsibility
• Sentence
What is the solution?
• If there is agreement that mentally disordered people should never be executed
– Abolition
– A blood test or a brain scan for mental disorder
• Defining competence

• A test of uncertainty or possibility?
– If there is a possibility that this person is mentally disordered then…
– Is there any degree of uncertainty about your opinion?

• Reversing the burden

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