Since its inception in 1978, ANZAPPL has sought to foster dialogue between legal professionals and mental health professionals. Importantly, this endeavour has always been not multidisciplinary but interdisciplinary: it is not simply that different professions make distinct contributions to the effective working of the law; rather, there are interactive relationships between the work done in their distinct professional discourses. The needs of the law pose certain questions that mental health experts may seek to answer; conversely, mental health professionals provide answers that may shape and at times constrain jurisprudence. The nuances and complexities of this dialectical relationship are especially evident in the domain of criminal responsibility and the associated issue of appropriate sentencing practice as applied to persons with mental health concerns.
There is a natural synergy between the aims of ANZAPPL and those of the RANZCP Faculty of Forensic Psychiatry: training and professional development in the delivery of expert evidence to the courts and other decision making bodies is a central aim of the Faculty. The one day event on which this special edition of the journal is based was delivered jointly by the two bodies. It brought together a diverse range of outstanding experts in an effort to illuminate a range of emerging themes relevant to criminal responsibility and mental health.
We were fortunate indeed to have President Chris Maxwell open the proceedings. In his scene-setting paper, he eloquently provides a comprehensive but accessible overview of the moral philosophical underpinnings of criminal responsibility. In doing so he illustrates the importance of mental health expertise in ensuring that the courts discharge their responsibilities in a way that is not only fair and just, but also promotes constructive public policy. In passing, we acknowledge here the immense contribution that President Maxwell has made to promoting psychologically-informed jurisprudence throughout his career, most notably in his tenure as President of the Court of Appeal of the Supreme Court of Victoria.
Jamie Walvisch, in a typically scholarly and well-reasoned paper, discusses the important emerging construct of ‘meta-culpability’. In doing so, not only does he clearly lay out the philosophical foundations for that construct but also lays bare both its strengths and its limitations, illustrating the complex interplay between jurisprudential thinking and the mental health field. He argues that mental health experts should adopt comprehensive longitudinal narrative approaches when seeking to inform the court with respect to the causative factors leading to an offence: an important message for all forensic experts.
Kate Sear addresses the legal construction of ‘addiction’ and how this interacts with notions of responsibility. She presents findings from her research involving interviews with lawyers and decision makers. She concludes with three concerns raised by her findings. Firstly, considering people to be afflicted by addiction removes their agency, while regarding their behaviour as due to their addiction, so the person may not address other issues that underpin their offending. Secondly, complex behaviours, such as family violence, may be oversimplified to an apparently readily targeted ‘cause’ (e.g. alcohol abuse), not addressing systemic or coexisting issues, which may perpetuate the violence. Thirdly, the ‘asymmetrical’ treatment of certain addictions, with alcohol and drug problems, for example, being seen as legitimate, whilst others, such as sex addiction are not. The latter leading to questions as to whether alcohol and drug addiction should be worthy of ‘legal strategic deployment’. The paper nicely highlights the tensions between clinical, moral, and legal conceptualisations and the pragmatics of using addiction in legal arguments and decision making.
Yolisha Singh sets out a strong argument for raising the age of criminal responsibility. She persuasively and passionately considers perspectives from neuroscience, human rights, and evidence-based practice. She challenges society and the law to stop over-riding a view of children as immature, vulnerable, malleable and in need of nurturance, support, and protection, by criminalising children who commit offences, due to fears of a teenaged crime wave or seeing children as knowing good from evil (our words not hers) and therefore deserving punishment when they transgress. She urges us to always put welfare, care and rehabilitation front and centre with children who do harm, and to disavow the retributive and fear-stoked approach. The ‘ridiculousness’ (her word not ours) of the current situation is highlighted by her provocative title, reminding us that we allow children to be found criminally responsible at an age when they are not allowed to purchase a hamster.
Michael Proeve tackles the contentious construct of remorse. In doing so he does not shy away from the ‘problem of how to discern the internal experiences of others’ – a problem that makes many experts reluctant to directly give an opinion with respect to genuineness or otherwise of remorse in a given offender. As Dr Proeve points out, the construct of remorse is firmly embedded in the criminal justice system both at sentencing and rehabilitation stages. It thus behoves mental health experts to understand its various elements and its implications. Dr Proeve’s paper draws upon empirical research and conceptual reasoning to provide the basis for a pragmatic consideration of remorse by both mental health experts and by the courts. The paper provides a genuine step forward in what has at times been a rather sterile and frustrating topic of debate.
It has long been recognised that in a small number of criminal matters, mental health concerns are so prominent that criminal responsibility is entirely negated. The systems of care, treatment and rehabilitation, however, that have been applied to persons after such a finding, are not always ideal. Indeed, there is a growing sense amongst some that the deficiencies in the system can now only be addressed by a radical reconstruction, starting with the abolition of the defence (‘mental impairment’ or its equivalent), that applies in such circumstances. This issue was the topic for the debate at the one day conference. In arguing for the motion that the defence of mental impairment ought to be abolished, Darjee and Marsh passionately outline the practical implications of the of the defence as it has played out in the Australian State of Victoria. They argue for a ‘utilitarian revolution’ similar to that which took place decades ago in the United Kingdom. In arguing against the motion, McSherry and Sullivan carefully consider arguments against the defence but argue for its being ‘perpetually reformed in line with advances in knowledge and policy’ rather than abolished. The contrasting approaches adopted with respect to the historical underpinnings underlying the defence is of particular fascination: for McSherry and Sullivan the historical foundations reflect ‘fundamental legal principles which underpin a humane society’, and are abolished at our peril; for Darjee and Marsh, however, these ancient origins render us ‘stuck with the medieval morality of insanity and responsibility’ rather than ‘modern humane and effective approaches to mentally disordered offenders’. Whichever arguments the reader finds more persuasive, the papers provide a fascinating and comprehensive overview of the field.
We hope that these papers inform understanding, provoke debate, and encourage those from legal and mental health backgrounds alike to question and perhaps reformulate how we approach and consider criminal responsibility. In the twenty-first century, are the ways we conceptualise, think about and articulate criminal responsibility fit for purpose? Do insights and developments in psychology and psychiatry mean that we need to fundamentally shift how we consider responsibility, and the role responsibility plays in the criminal justice process? Are the ways of applying the concept legitimate in the context of retribution, deterrence, or rehabilitation? Is a focus on responsibility to the detriment of progress in addressing criminal behaviour? Or, as the criminal law is inherently about fundamental moral issues, are psychology and psychiatry just bit players who should only enter the legal theatre on the terms of the law and when asked to do so?
We would like to thank the speakers and authors of the papers, the editorial team at Psychiatry, Psychology and the Law, those who attended and contributed to the online conference on 8 August 2021, and the people at the RANZCP and ANZAPPL who helped to organise the conference. We hope that the next joint conference will be in person. We look forward to further interdisciplinary discourse, and perhaps another special edition in due course, on another topic that has vexed psychiatrists, psychologists and lawyers.