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28 Med. Sci. & L. 1 (1988)

handle is hein.journals/mdsclw28 and id is 1 raw text is: Med. Sci. Law (1988) Vol. 28, No. 1 Printed in Great Britain Editorial Dr JOHN HAVARD MA MD LLB Secretary, British Medical Association MENTAL CAPACITY 'The respective roles of the doctor and the lawyer are quite different' observed Alec Samuels addressing the Mental Health and Legal Capacity Symposium, jointly organized by the British Medical Association, the Law Society and the Academy on 29 October. It was clear from the papers read at the Symposium that failure to recognize this fact has been responsible for much of the difficulty experienced by both professions in dealing with the problems raised by the issue of mental capacity in both the civil and criminal areas of law. The widest gulf between the approaches of the two disciplines exists over the issue of insanity in criminal law. The legal approach enshrined in the McNaghten Rules, which for procedural rea- sons connected with sentencing are rarely invoked these days, excludes from the defence of insanity any person who knew that what he was doing was wrong. The difficulty arises in that an insane person will often know what he is doing and will know that what he is doing is regarded as wrong. Even where the Rules are successfully invoked, the Judge has no option under the Criminal Procedure (Insanity) Act of 1964* but to leave the defendant to be sent by the Home Secretary to a Special Hospital under an unlimited restrictive order. As the result is often the same when a mentally abnormal offender is convicted of manslaughter on grounds of dimin- ished responsibility, the insanity defence under the Rules is not often used these days. Neverthe- less, it does avoid the necessity of convicting a mentally abnormal offender of a serious offence. As was pointed out at the Symposium, the concept of diminished responsibility is a child of the insanity laws, and some would call it an illegitimate child, as it was introduced in order to *(c84, s5 and Sch 1). avoid a sentence of execution being passed following the report of the Royal Commission on Capital Punishment in 1953. It seems that the degree of abnormality of mind is only minimally related to the chances of a successful plea. Many cases have been reported in which defendants who were so mentally ill that they might have successfully raised a plea of insanity have been found not to be suffering from diminished responsibility. In other words, diminished respon- sibility is an entirely legal concept and not a psychiatric definition. Another problem arises over the defendant with undisputed psychosis who insists on pleading not guilty, who is convicted and who receives a mandatory life sentence. It seems that in one out of every seven cases of diminished responsibility considered to be psychotic, the accused is sent to prison and not to hospital-although they may later be trans- ferred. The position of depressives is particularly unsatisfactory as they may recover with treatment before trial. Accordingly, Prison Medical Officers sometimes withhold medication until a psy- chiatric assessment has been made. Insofar as mental capacity in criminal offences is often associated with charges of homicide, it is interesting to note the close relationship which often exists between the characteristics of the offender and the victim. Many homicide victims have a psychiatric history of personality disorder, drug dependence or alcoholism, and this fre- quently precipitates the assault which led to their death. In half the cases the victim is a member of the same family, and in only a quarter of the cases is the victim a stranger-truly an unusual crime. In the civil area, the most interesting develop- ment has been the introduction of the enduring power of attorney whereby it is possible to avoid the inconvenience of a power of attorney being automatically revoked as soon as the donor's

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