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43 Notre Dame Law. 24 (1967-1968)
Mental Illness As an Excuse for Civil Wrongs

handle is hein.journals/tndl43 and id is 68 raw text is: MENTAL ILLNESS AS AN EXCUSE FOR CIVIL WRONGS George J. Alexander* and Thomas S. Szasz** I. Introduction Mental illness is one of the traditional excusing conditions for crime. Since Daniel M'Naghten's historical acquittal by reason of insanity in 1843,1 the issue of nonresponsibility for crime because of mental illness has occupied the attention of legislators, judges, attorneys and psychiatrists, and has resulted in a massive body of judicial decisions and scholarly analyses.2 In contrast, the subject of nonresponsibility for civil wrongs because of mental illness has received scant attention.' In this article we intend to bring the discussion of the relation between mental illness and tort up to date. II. The Concept of Mental Illness In both civil and criminal cases the concepts of mental illness, insanity, and psychosis constitute an important part of the legal definitions in issue and thus strongly influence the ultimate determination of responsibility. Yet,. the precise behavioral content or operational meaning of these terms is neither clear nor generally agreed upon. We shall begin therefore with a brief survey of the customary uses of the concept of mental illness. First, mental illness is not the name of a physical incapacity. The crucial manifestations of mental illness are behavioral, not physical. Second, mental illness may be attributed to a physical disease or injury. A person with neuro- syphilis may be said to be insane or to have an organic psychosis, or a drunk person to suffer from a toxic psychosis.5 In such cases, mental illness is attributed to anatomical or chemical alterations in the brain. Third, mental Professor of Law and Associate Dean, Syracuse University College of Law. * Professor of Psychiatry, State University of New York, Upstate Medical Center. The authors wish to thank John T. Owens for his research assistance in preparing this article. 1 M'Naghten's Case, 8 Eng. Rep. 718 (H.L. 1843). 2 For a small sampling, see: Goldstein & Katz, Dangerousness and Mental Illness, 70 YALE L.J. 225 (1960); Guttmacher, Implications of the Durham Case Decision, 3 J. FOR. Sc. 135 (1958); Insanity and the Criminal Law-A Symposium, 22 U. CH. L. REv. 317 (1955); Montrose, The McNaghten Rules, 18 Modern L. Rev. 505 (1955); Mueller, M'Naghten Remains Irreplaceable, 50 GEO. L.J. 105 (1961); Rome, McNaughton, Durham and Psychiatry, 34 F.R.D. 93 (1964); Sobeloff, Insanity and the Criminal Law, 41 A.B.A.J. 793 (1955); Criminal Responsibility and Mental Disease, 26 TENN. L. REV. 221 (1959). One of the authors has published his views on the subject in: T. SZASZ, LAW, LIBERTY, AND PSYCHIATRY (1963). 3 See Ague, The Liability of Insane Persons in Tort Actions, 60 DicK. L. REv. 211 (1956); Bohlen, Liability in Tort of Infants and Insane Persons, 23 MICH. L. REV. 9 (1924); Cook, Mental Deficiency in Relation to Tort, 21 COLUM. L. REV. 333 (1921); Curran, Tort Liability of the Mentally Ill and Mentally Deficient, 21 OHIO ST. L.J. 52 (1960); Green, Public Policies Underlying the Law of Mental Incompetency, 38 MICH. L. REV. 1189 (1940); Hornblower, Insanity and the Law of Negligence, 5 COLUM. L. REV. 278 (1905); Weisiger, Tort Liability of Minors and Incompetents, U. ILL. L.F. 227 (1951); Wilkinson, Mental Incompetency as a Defense to Tort Liability, 17 RocKY MT. L. REV. 38 (1944). 4 Ash, The Reliability of Psychiatric Diagnoses, 44 J. ABNORMAL AND SOCIAL PSYCHOLOGY 272 (1949). 5 D. HENDERSON & I. BATCHELOR, PSYCHIATRY Ch. 15 '(9th ed. 1962).

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